Same-Sex Divorce in New Mexico

Same-sex divorce in New Mexico is somewhat the same as it is for heterosexual couples – so it can be just as stressful. Here are the basics on what you need to know:

  • Legal separation – This is not a prerequisite to divorce in New Mexico.
  • Residency – To file for divorce (or Dissolution of Marriage) in New Mexico either you or your spouse must reside in the state for at least six months prior to filing. You can file in the county where either party lives.
  • Grounds for Divorce – The Petition for Dissolution of Marriage must state the grounds for divorce. In New Mexico it can be either “No-Fault” where the parties are incompatible and there is no hope of reconciliation; or “Fault” where there are allegations of cruel and inhuman treatment; adultery; or abandonment.
  • Community Property – New Mexico is a community property state. Assets, property and debt acquired during the marriage will be split equally. If you want to divide otherwise, then the parties must come to a mutual agreement. Debt, assets and property you came into the marriage with is generally not subject to division.
  • Alimony – One spouse may be entitled to permanent or temporary spousal support depending on need as well as the other spouse’s ability to pay. New Mexico courts have discretion in awarding alimony and will consider several factors revolving around the relationship and each party.

If there are children in the relationship there are several legal issues surrounding both custody and support, such as:

  • Child Custody: If custody is contested the court the court may appoint a guardian ad litem to represent the minor child. Mediation will be attempted to come to a custody resolution which involves a neutral third party guiding the process.
  • Factors Court Considers in Custody: The court uses the standard “best interests of the child” in determining custody taking into account all relevant factors including, but not limited to: the child and each parent’s wishes; the relationships between the child and siblings, parents and other significant parties; the physical and mental health of all parties; and the child’s involvement in school and community with relation to where the child will reside.
  • Determining Child Support: New Mexico uses the “Income Shares” standard in calculating child support. That is, each parent’s income is divided by the total sum of both parents income to determine what percentage of support each parent pays. Child support tables dictate the level of support to be paid to the child.

There are some considerations unique to a same-sex marriage that may impact the divorce, such as:

  • Prenuptial Agreements – Since same-sex marriage has only been recently legalized in many states, it is quite possible that the parties are older, have accumulated significant assets during their lives and have premarital agreements to incorporate during the divorce process.
  • Children in Same-Sex Marriage – Some couples enter into a union with children from a previous marriage; or the couple had kids during the marriage. There may be special issues like parenthood to bring to your lawyer’s attention.
  • The Will – If your will was altered to include your spouse, do not neglect to address this during divorce preparation with your lawyer.

Speak to an attorney at Lightning Legal Group for all your questions on criminal and family law. We are the best legal practitioners in New Mexico. Call us today to schedule a free consultation at 505-247-2390.


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