Divorce FAQ

Divorce: What is involved in the process?

When married people find they can no longer live together, that is called "irreconcilable differences". New Mexico is a "no fault" divorce state, which means that if even one party wishes to divorce, the divorce will be granted. There are about five basic things decided in a divorce - child custody and visitation, child support, division of assets, division of liabilities, and a number of other matters, such as alimony, tax issues, real estate, pensions, and so on. Of course, if there are no minor children, the divorce is less complicated.

The process is initiated by one party, called the "Petitioner", files a divorce petition and serves it on the other party. The party who gets served is the Respondent. They have 30 days in which they must answer or get a default judgment entered against them.

What is an Uncontested Divorce?

Smart people decide the terms of their own divorce. The divorce judges in Bernalillo County will usually sign off on a "Stipulated Final Decree" submitted to them by the divorcing couple. This means that the couple has agreed to the terms of their divorce. In many uncontested divorces, nobody has to be served and the parties never even see a judge.

Keep Divorce Lawyers From Fanning the Flames

When you're emotionally distraught or angry, turning all the details and hassle of a divorce over to a divorce lawyers may seem like a perfect solution. Unfortunately, it doesn't always simplify things.

It's all about the lawyers you hire, so it's critically important that you find the right one. If you want a lawyers's help but you still want to keep your divorce civil, make sure you hire a lawyers who will support that approach. When you interview lawyers you're considering, ask them whether they feel favorable about negotiating a settlement rather than fighting it out in court. Lawyers operate under a prime directive: the zealous pursuit of their client's interests. If you make sure to let the lawyers know that your interest is in an amicable divorce, then that's what you should get.

When to Hire a Divorce Lawyer?

A good lawyers can help keep the parties civil and keep down the costs. A cool-headed lawyers will figure out what a fair settlement might be and approach the other party with the settlement. Sometimes a lawyers can even work for both parties as a mediator, someone who is hired to resolve all the issues without ever having to go to court. If negotiations break down and the parties wind up in court, one of the parties has to get a different lawyers.

How are property and debts divided at divorce?

It is common for a divorcing couple to decide about dividing their property and debts themselves (with or without the help of a neutral third party like a mediator), rather than leaving it to the judge. However, if a couple cannot agree, they can submit their property dispute to the court, which will use state law rules to divide the property.

Courts divide property under one of two basic schemes: community property or equitable distribution. Debts are divided according to the same principles.

  • Community property. In Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and Puerto Rico, all property of a married person is as either community property (owned equally by both spouses) or the separate property of one spouse. At divorce, community property is generally divided equally between the spouses, while each spouse keeps his or her separate property.
  • Equitable distribution. In all other states, assets and earnings accumulated during marriage are divided equitably (fairly), but not necessarily equally. In practice, often two-thirds of the assets go to the higher-wage earner and one-third to the other spouse.

How are Custody and Child Support decided in a divorce?

Bernalillo County is fortunate to have Court Clinic, a social work agency built into the divorce court. If there is a dispute about custody, the clinic will evaluate each parent and often the children to make a determination based on what would be in the best interests of the child. Typically, one parent gets primary physical custody of the children, while the other parent has visitation on specified dates. The parent who does not have primary physical custody usually pays child support to the other parent. Visitation schedules vary greatly. Sometimes one parent is granted sole physical custody, usually when the other parent poses some kind of threat to the children. In other cases, the parents may have equal time sharing, the children staying with one parent one week and the other parent the next week, or some similar arrangement.

Child support is decided by the New Mexico Child Support Guidelines, a spreadsheet that automatically calculates child support, based on several factors, such as income, days with the children, payments for health care or school activities, and so on. If both parents had roughly equal incomes and each had the children half time, neither would pay child support to the other, at least not more than a minimal amount.

How do we modify a custody or child support order?

Frequently people need to make changes to existing orders. For example, if a husband was earning $100,000 per year and his income drops to $40,000 per year, he obviously shouldn't have to keep paying child support at the $100,000 level. The modification process starts out by filing a motion with the court to re-examine the child support numbers. These numbers are not automatically adjusted when there is a loss of income. Unless you petition the court to lower the amount, you will be obligated at the old rate. Once you petition, a hearing officer will evaluate your case and make recommendations to the judge.

Child support works in the same way. Let's say a father only sees his child one day a week. He wants to get half-time custody. The father would have to petition the court for a custody modification. It is likely the case will be referred to Court Clinic for evaluation, and the clinicians will make recommendations to the judge.