When some couples decide to separate, they manage to do so without much infighting. The idea of an uncontested divorce arose out of the idea that couples who do not need to fight should not have to suffer through the same legal formalities as couples that contest their divorce filings. If you believe that you and your spouse may be able to agree to an uncontested divorce, that option is available to you.
This article will explain the nature of an uncontested divorce and New Mexico uncontested divorce law. If you still have any questions after reading this article or would like to file for an uncontested divorce, you should consult with an experienced divorce attorney.
Uncontested Divorce in New Mexico Defined
Like many states, New Mexico realizes that many spouses want simpler divorce and separation procedures. This is why New Mexico has created a mechanism for amicable spouses to file for an uncontested divorce. Such filings generally save couples, time, money, and emotional sanity.
Uncontested divorce in New Mexico is known as divorce by voluntary settlement. The settlement is normally accomplished by the creation of a legally-binding separation agreement. New Mexico judges want to encourage uncontested divorces, and will approve any separation agreement the parties enter into that meets the requirements of New Mexico law and is not created fraudulently.
Requirements for Seeking a New Mexico Uncontested Divorce
To file for uncontested divorce in New Mexico, the filing spouses must meet certain requirements. Any questions about these requirements can be answered by an experienced New Mexico divorce attorney or family lawyer.
The first requirement is that the couple satisfies the New Mexico divorce residency requirement. To satisfy residency, either spouse must have been “domiciled” in New Mexico for at least six months prior to filing for divorce. A person has legal “domicile” in New Mexico where he or she has a place of residence in the state and intends to reside in the state permanently.1
Next, the spouses must agree on the reason for seeking a divorce (also known as grounds). New Mexico has three at-fault grounds for divorce, however, they are incredibly rarely used even when divorces are contested. This is because New Mexico’s no-fault ground for divorce, incompatibility, is much simpler. Incompatibility means the legitimate goals of the marriage were destroyed by infighting or personality conflicts, and there is no possibility of reconciliation between the spouses.2
Finally, the spouses must agree on the terms of the divorce. Agreement can be done via the divorce pleadings, for example by stipulating (agreeing) with the terms in the divorce petition. However, most spouses will want to opt for the creation of a pre-divorce separation agreement, discussed below.
On Spousal Support and Separation Agreements
When spouses sit down to discuss the terms of their divorce, it is often beneficial for the spouses to sign a legal separation agreement. A separation agreement is NOT a formal divorce. A separation agreement is a contract between spouses that lays out their agreement and terms of their separation. A fully completed separation agreement can serve as the basis for an uncontested divorce, and may be helpful in filling out the required divorce paperwork. Prior to signing any separation agreement (or any contract with your spouse), you should have an experienced attorney review the terms of the contract for you.
In general, your separation agreement should address all of the potential issues in the divorce. Any issue not resolved in the agreement will need to be ruled on my a judge, which could result in your divorce becoming contested. The ideal divorce separation agreement should address the following issues:
- Disposition of the marital estate and property (including the marital home);
- Division of the marital debts;
- Spousal support (also known as alimony);
- Attorneys’ fees and costs; and
- If applicable, child support, child custody and visitation, and agreement on a child’s education and medical expenses.
One final important note on spousal support. New Mexico courts will be hesitant to approve any amount of child support that does not fall within the appropriate range for child support guidelines, which can be found online.3 Any deviation from the guidelines must be approved by the Court, which must make a ruling that the deviation from the guidelines is not unjust or inappropriate.4
The Process for Filing for an Uncontested Divorce in New Mexico
Once you and your spouse have decided to file for an uncontested divorce, the general flow of the process is as follows:
- This step is optional, but you should begin by consulting a family law attorney who can either answer any questions that you may have, or who can help you file your divorce paperwork properly.
- If you decide to proceed with a divorce filing without an attorney, you will need to acquire and prepare the appropriate divorce paperwork. Fortunately, the New Mexico Courts’ website provides several self-help divorce forms that can be filed in New Mexico district courts.5
- Next, you and your spouse should sit down together and draft a legally-binding divorce separation agreement.
- Once you are ready to file for divorce, you should prepare the divorce petition for filing in the district court in the county in which either spouse satisfies the residency requirement. The petitioner (the filing spouse) must also swear by affidavit that the divorce petition submitted contains only true information.
- Whichever spouse filed the divorce paperwork must then serve the non-filing spouse with the divorce paperwork. Service of process must be accomplished according to New Mexico law (ask your local court staff for more information if you are unsure how to execute proper service).
- Once the paperwork has been completed, contact the court to set a final hearing. At the final hearing, judge will approve the separation agreement and finalize the divorce.
Note: This article is not legal advice. Please consult a lawyer for your specific situation.
- N.M. Stat. Ann. § 40-4-5.
- N.M. Stat. Ann. § 40-4-2.
- N.M. Stat. Ann. § 40-4-11.1.
- N.M. Stat. Ann. § 40-4-11.2.