Divorce in New Mexico is referred to as Dissolution of Marriage.
To file for divorce in New Mexico either party must reside in the state for the six months immediately preceding the date of the filing and have a domicile in the state.
For residency purposes, a domicile is defined as follows:
Persons serving in any military branch of the U.S. government who have been continuously stationed in any military base or installation in New Mexico for six months shall be deemed to have a domicile in the state and county where the base or installation is located.
In addition, any person who had resided continuously in New Mexico for at least six months immediately prior to his/her spouse's entry into any military branch of the U.S. government who is stationed or whose spouse is stationed at any military base or installation outside of New Mexico and who has a present intention in good faith to return and to reside in New Mexico permanently or indefinitely, shall for these purposes be deemed to have a domicile of the state and county of his residence immediately prior to his/her spouse's entry into the military branch.
The Petitioner (filing party) may file a Petition for Dissolution of Marriage in a district court of the county where either the Petitioner or the Respondent (non-filing party) resides.
Restoration of a spouse's maiden name is not addressed specifically in New Mexico divorce statutes. However, the request may be included in the Petition for Dissolution and the judge may include a formal order in the divorce decree indicating the name change.
Either spouse may petition a district court for a dissolution of marriage on any of the following grounds:
To be declared void, it must be decreed by a district court upon proper proceedings. A cause of action may be instituted by the minor, by next friend, by either parent or legal guardian of the minor or by the district attorney.
In the case of minors, no party to the marriage who is over the prohibited age shall be allowed to apply for or obtain a decree of the court declaring the marriage void. However, if the parties live together until they reach the legal age of consent, then the marriage shall be deemed legal and binding.
New Mexico is a community property state. Property and debts acquired during the marriage shall be split equally. Separate property is not subject to division.
New Mexico statute defines separate property as follows:
Quasi-community property is all real or personal property, which is not designed as separate property, wherever situated, acquired in any of the following ways:
Community property is property acquired by either or both spouses during the marriage which is not defined as separate property or quasi-community property.
In any proceeding for the dissolution of marriage, at final hearing the court may allow either party a reasonable portion of the spouse's property or a reasonable sum of money to be paid by either spouse either in a single sum or in installments, as spousal support as may seem just and proper, including a court award of one of the following types of alimony:
The court may designate that any spousal support awarded be non-modifiable with respect to the amount or duration of the support payments. Spousal support shall terminate upon the death of the receiving spouse, unless the support order provides otherwise.
When making determinations concerning spousal support to be awarded the court shall consider the following criteria:
Whenever the husband and wife have permanently separated and no longer live or cohabit together as husband and wife, either may begin proceedings in the district court for disposition of children without asking for or obtaining in the proceedings, a dissolution of marriage.
In any case in which a judgment or decree will be entered awarding the custody of a minor, the district court, shall, if the minor is under the age of 14, determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including the following:
If the minor is 14 years of age or older, the court shall consider the desires of the minor regarding who he/she wishes to live with before awarding custody of the minor.
In any proceeding in which the custody of a child is at issue, the court shall not prefer one parent as a custodian solely because of gender.
The court presumes that joint custody is in the best interests of a child in an initial custody determination. In making its final determination regarding joint custody, in addition to the other factors reviewed regarding custody, the court shall also consider the following factors:
When joint custody is awarded, the court shall approve a parenting plan for the implementation of the prospective custody arrangement prior to the award of joint custody. The parenting plan shall include a division of a child's time and care into periods of responsibility for each parent. It may also include the following:
In any case in which the parents agree to a form of custody, the court should award custody consistent with the agreement unless it determines that the agreement is not in the best interests of the child.
The court may set apart a portion out of the property or income of the parents for the maintenance and education of their un-emancipated minor children as may seem just and proper, or for their children until their graduation from high school, if the children are emancipated only by age, are under 19 and are attending high school.
New Mexico uses the Income Shares Model in determining child support. The basic support calculation is based on the parents' combined gross monthly income and the number of children for whom child support is being ordered. Adjustments may be made for the children's health and dental insurance premiums and work-related child care.
The purposes of the child support guidelines are as follows:
In any proceeding before a court in which the court has the duty or authority to determine liability of a parent for the support of minor children of the amount of that support, the court shall do the following:
Any deviation from the child support guidelines must be supported by a written finding in the decree, judgment or order of child support that application of the guidelines would be unjust or inappropriate. Circumstances creating a substantial hardship in the paying parent, receiving parent or children may justify a deviation upward or downward from the amount that would otherwise by payable under the guidelines.
Whenever a married couple has permanently separated and no longer lives or cohabits together as husband and wife, either may commence proceedings in the district court for a division of property, disposition of children or alimony, without asking for or obtaining in the proceedings, a dissolution of marriage.
In proceedings for the dissolution of marriage, separation or support between husband and wife, the court may make an allowance to either spouse of the other spouse's separate property as alimony and the decree making the allowance shall have the force and effect of vesting the title of the property so allowed in the recipient.
An action for legal separation may be filed when there has been a permanent physical separation of the spouses.
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