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Divorce in New Mexico
The Legal Process, Your Rights, and What to Expect
By Sandra Morgan Little, Jan Gilman-Tepper, Roberta S. Batley, Tiffany Oliver Leigh
Addicus Books, Inc.Copyright © 2015 Sandra Morgan Little, Jan Gilman-Tepper, Roberta S. Batley, Tiffany Oliver Leigh
All rights reserved.
Understanding the Divorce Process
At a time when your life can feel like it's in utter chaos, sometimes the smallest bit of predictability can bring a sense of comfort. The outcome of many aspects of your divorce may be unknown, increasing your fear and anxiety. But there is one part of your divorce that does have some measure of predictability and that is the divorce process itself.
Most divorces proceed in a step-by-step manner. Despite the uniqueness of your divorce, you can generally count on one phase of your divorce following the next. Sometimes just realizing that you are completing stages and moving forward with your divorce can reassure you that it won't go on forever.
It is essential to develop a basic understanding of the divorce process. This will lower your anxiety when your attorney starts talking about "depositions" or "going to trial." It can reduce your frustration about the length of the process because you understand why each step is needed. It will support you as you begin preparing for what comes next. Most importantly, understanding the divorce process will make your experience of the entire divorce easier. Who wouldn't prefer that?
1.1 What is my first step in getting a divorce?
Find a law firm that handles divorces as a regular part of its law practice. Look for a New Mexico board-certified family law specialist or get a recommendation from people who have knowledge of an attorney's experience and reputation.
Even if you are not ready to file for divorce, call to schedule a consultation with an attorney right away to obtain information about protecting yourself and your children. Even if you are not planning to file for divorce yourself, your spouse might be.
Ask the attorney what documents you should take to your initial consultation. Make a list of your questions to bring to your first meeting. Start making plans for how you will pay your attorney to begin work on your case.
1.2 Must I have an attorney to get a divorce in New Mexico?
You are not required to have an attorney to obtain a divorce in New Mexico. However, if your case involves children, alimony, significant property, retirement, or debts, you should avoid proceeding on your own.
If your divorce does not involve any of these issues, call your county courthouse to see whether or not there is a self-help desk available to provide assistance. A person who proceeds in a legal matter without an attorney is referred to as being pro se (on one's own).
If you are considering proceeding without an attorney, at a minimum it is a good idea to have an initial consultation with an attorney to discuss your rights and duties under the law. You may have certain rights or obligations of which you are unaware. Meeting with an attorney can help you decide whether or not to proceed on your own. It is often said that if your divorce will involve the division of retirement assets, such as state or federal retirement benefits, military pensions, or 401(k) accounts, you should have an attorney to assist you.
Also you should seek the help of an attorney if:
You will need to sell a house or other real estate.
There is a claim about certain property being separate or partially separate property
There is a claim for spousal support (also known as alimony)
There is a bankruptcy or potential for bankruptcy
There is a business that will need to be valued
There is property or a business in other states
There are complex or difficult tax issues
There are custody disputes.
1.3 What steps are taken during the divorce process?
The steps taken to obtain a divorce in New Mexico typically include:
Obtain a referral for an attorney.
Schedule an appointment with an attorney.
Prepare questions and gather needed documents for the initial consultation.
Meet for the initial consultation with attorney.
Pay retainer to attorney and sign retainer agreement.
Provide requested information and documents to your attorney.
Choose which process you want for your divorce: mediation, negotiation, collaborative, or litigation.
* If you choose mediation, both you and your spouse will meet with a mediator who may or may not be an attorney. You will have a series of joint sessions with the mediator to reach an agreement on all issues related to the divorce. When you and your spouse reach an agreement, one of your attorneys will draft the agreement. Your individual attorneys will review it to make sure it protects you and make the necessary changes before you sign it.
* Negotiations begin regarding terms of a temporary order on matters such as custody, support, and temporary possession of the family home.
* If you select the collaborative process, you and your spouse will each select a collaboratively trained attorney to represent you. There will be other members of the collaborative team as well. A financial neutral member will gather all the financial information and help prepare a property and debt work sheet and a child-support work sheet, and will recommend an appropriate settlement based upon the interest for each of the spouses. A divorce coach, who is a mental health professional, will help each spouse navigate the divorce process. A child specialist will help them work out and draft a parenting plan that will best fit their children.
* If you select a process where you are in litigation, motions will be filed on various issues, discovery will probably be done, and you may have a trial before a judge to determine some or all the issues. It is rare that all issues in a divorce are tried before the judge. Spouses usually have agreed on only some issues and request the court to decide the ones they could not agree upon.
Take other actions as advised by attorney.
Attorney prepares petition for dissolution of marriage (divorce) and supporting documents for your review and signature.
Attorney files petition for dissolution of marriage with clerk of the court. A temporary domestic order (TDO) is immediately entered by the court. The TDO is to keep the financial and custodial status quo in place.
Attorney may request a hearing before the court to address temporary matters.
Attorneys prepare financial work sheets for interim hearing.
A temporary hearing is held.
Parties reach an agreement on temporary matters.
A temporary order is prepared by one attorney, approved by other attorney, and submitted to the judge for signature.
If there are minor children, parties may be required to attend a parent education class, develop a parenting plan, or have a hearing before the court concerning temporary custody.
Both sides conduct discovery to obtain information regarding all relevant facts. If needed, obtain valuations of all assets, including expert opinions.
Confer with attorney to review facts, identify issues, assess strengths and weaknesses of case, review strategy, and develop proposal for settlement.
Spouses, guided by their attorneys, attempt to reach an agreement through written proposals, mediation, settlement conferences, or other negotiation.
Parties reach an agreement on all issues.
Attorney prepares a final decree of dissolution of marriage and required supporting court orders for approval by spouses and attorneys.
If you are in the collaborative process, all the necessary financial documents are exchanged between the parties. The financial neutral reviews them and prepares an asset-and-liability work sheet in order to consider an agreement.
If there are children, the child specialist works with the spouses and their children to work out an age-appropriate parenting plan.
Meetings are conducted with the spouses, financial neutral, divorce coach, and child specialist to come to a tailor-made agreement for the spouses and their children.
The attorney requests a trial setting for the court to set a trial date.
Pay trial retainer to fund the work needed to prepare for trial and services for the day(s) of trial.
Parties prepare for trial on unresolved issues.
Trial preparations proceed and include the preparation of witnesses, trial exhibits, legal research on contested issues, pretrial motions, trial brief, preparation of direct and cross- examination of witnesses, preparation of opening statement, subpoena of witnesses, and closing argument to the court.
Meet with attorney for final trial preparation.
A trial is held.
The judge makes a decision.
Attorney prepares final decree of dissolution of marriage.
Other attorney approves final decree of dissolution of marriage, or a hearing is required for the judge to decide on the language in the final decree of dissolution of marriage.
Final decree of dissolution of marriage is submitted to judge for signature.
The judge signs final decree of dissolution of marriage.
Make payments and sign documents (deeds or titles) pursuant to final decree of dissolution of marriage.
Prepare documents required to divide retirement accounts and ensure the payment of child support are submitted to the court.
Pay any remaining balance due on attorney's fees or receive refund.
1.4 Is New Mexico a no-fault state, or do I need grounds for a divorce?
New Mexico, like most states, is a no-fault divorce state. This means that neither you nor your spouse is required to prove that the other is "at fault" in order to be granted a divorce. Factors such as infidelity, cruelty, or abandonment are not necessary to receive a divorce in New Mexico, and none of those grounds will result in an unequal division of assets or payment of money. Rather, it is necessary to prove that "the legitimate ends of the marriage relationship are destroyed, preventing any reasonable expectation of reconciliation" (for example, there is no possibility of reconciliation between you and your spouse).
The testimony of either you or your spouse that you do not wish to continue to be married is sufficient evidence for the court to rule that the marriage should be dissolved.
1.5 How will a judge view my infidelity or my spouse's infidelity?
Because New Mexico is a no-fault divorce state, a judge generally will not consider either party's infidelity to be relevant. The exception is that if, rather than filing for a divorce on no-fault grounds, you choose to file on the grounds of infidelity, you must be able to prove such infidelity.
1.6 Do I have to get divorced in the same state in which I married?
No. Regardless of where you were married, you may seek a divorce in New Mexico if the jurisdictional requirements of residency are met. The jurisdictional requirements are discussed in the following question.
1.7 How long must I have lived in New Mexico to get a divorce in the state?
Either you or your spouse must have been a resident of New Mexico for at least six months to meet the residency requirement for a divorce in New Mexico. If neither party meets the residency requirement, other legal options are available for your protection.
If you do not meet the six-month residency requirement, talk to your attorney about options such as a legal separation or a protection order.
1.8 My spouse has told me she will never "give" me a divorce. Can I get one in New Mexico anyway?
Yes. New Mexico does not require that your spouse agree to a divorce. If your spouse threatens to not "give" you a divorce, know that in New Mexico this is an idle threat without any basis in the law.
Under New Mexico law, to obtain a divorce you must be able to prove that "the legitimate ends of the marriage relationship are destroyed, preventing any reasonable expectation of reconciliation." It is not necessary to have your spouse agree to the divorce or to allege the specific difficulties that arose during the marriage to obtain a divorce in New Mexico.
1.9 Can I divorce my spouse in New Mexico if he or she lives in another state?
Provided you have met the residency requirements for living in New Mexico for six months, you can file for divorce here even if your spouse lives in another state. However, the New Mexico court may not have the jurisdiction to divide property or debt, or award custody or support.
Discuss with your attorney the facts that will need to be proven and the necessary steps to give your spouse proper notice to ensure that the court will have jurisdiction over your spouse. Your attorney can counsel you on whether or not it is possible to proceed with the divorce.
1.10 Can I get a divorce even when I don't know where my spouse is currently living?
New Mexico law allows you to proceed with a divorce even if you do not know the current address of your spouse. First, take action to attempt to locate your spouse. Contact family members, friends, former coworkers, or anyone else who might know your spouse's whereabouts. Utilize resources on the Internet that are designed to help locate people.
Let your attorney know of the efforts you have made to attempt to find your spouse. Inform your attorney of your spouse's last known address, as well as any work address or other address where this person may be found. Once your attorney attempts to give notice to your spouse without success, it is possible to ask the court to proceed with the divorce by giving notice through publication in a newspaper.
Although your divorce may be granted following service of notice by publication in a newspaper, you may not be able to get other court orders such as those for child support or alimony without giving personal notice to your spouse. Talk to your attorney about your options and rights if you don't know where your spouse is living.
1.11 I just moved to a different county within the state of New Mexico. Do I have to file in the county where my spouse lives?
You may file your petition for dissolution of marriage either in the county where you reside or in the county where your spouse resides.
1.12 I immigrated to New Mexico. Will my immigration status stop me from getting a divorce?
If you meet the residency requirements for divorce in New Mexico, you can get a divorce here regardless of your immigration status. Talk to your immigration attorney about the likelihood of a divorce leading to immigration challenges.
If you are a victim of domestic violence, tell your attorney. You may be eligible for a change in your immigration status under the federal Violence Against Women Act.
1.13 I want to get divorced in my Indian tribal court. What do I need to know?
Each Indian tribal court has its own laws governing divorce. Requirements for residency; grounds for divorce; and the laws regarding property, alimony, and children can vary substantially from state law. Some tribes have very different laws governing the grounds for your divorce, removal of children from the home, and cohabitation.
Contact an attorney who is knowledgeable about the law in your tribal court for legal advice on pursuing a divorce in your tribal court or on the requirements for recording a divorce obtained in state court with the clerk of the tribal court.
1.14 Is there a waiting period for a divorce in New Mexico?
No. There is no waiting period for a divorce in New Mexico. The divorce becomes final the day the final decree of dissolution of marriage is signed by the judge and filed with the court.
1.15 What is a divorce petition ?
A divorce petition, also referred to as a petition for dissolution of marriage, is a document signed by the person filing for divorce and filed with the clerk of the court to initiate the divorce process. The petition for dissolution of marriage will provide, in very general terms, what the petitioner is asking the court to order.
1.16 My spouse said she filed for divorce last week, but my attorney says there's nothing on file at the courthouse. What does it mean to "file for divorce"?
When attorneys use the term filing they are typically referring to filing a legal document at the courthouse, such as delivering a petition for dissolution of marriage to the clerk of the court. Sometimes a person who has hired an attorney to begin a divorce action uses the phrase "I've filed for divorce," although no papers have yet been taken to the courthouse to start the legal process.
1.17 If we both want a divorce, does it matter who files?
No. In the eyes of the court, the petitioner (the party who files the petition for dissolution of marriage) and the respondent (the other spouse) are not seen differently by virtue of which party filed. The court, as a neutral decision maker, will not give preference to either party. Both parties will be given adequate notice, and each will have a chance to be heard and present an argument.
Excerpted from Divorce in New Mexico by Sandra Morgan Little, Jan Gilman-Tepper, Roberta S. Batley, Tiffany Oliver Leigh. Copyright © 2015 Sandra Morgan Little, Jan Gilman-Tepper, Roberta S. Batley, Tiffany Oliver Leigh. Excerpted by permission of Addicus Books, Inc..
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
1 Understanding the Divorce Process,
2 Coping with Stress during the Divorce Process,
3 Working with Your Attorney,
4 Attorney Fees and Costs,
5 The Discovery Process,
6 Mediation, Negotiation, and Collaboration,
7 Emergency: When You Fear Your Spouse,
8 Child Custody,
9 Child Support,
10 Spousal Support,
11 Division of Property,
12 Benefits: Insurance, Retirement, and Pensions,
13 Division of Debts,
15 Going to Court,
16 The Appeals Process,
17 Prenuptial and Postnuptial Agreements,
About the Authors,