What is the difference between a divorce and a legal separation?

In New Mexico, a couple that pursues a legal separation must go through the same legal process as a divorce, which includes filing legal paperwork, addressing the same legal issues the arise in a divorce, and appearing before a judge (if the couple can’t agree on all issues).

The major legal difference between the two options is that after a legal separation, neither spouse is free to re-marry. And, contrary to a common misconception, a legal separation is not a “partial” divorce or an initial step toward divorce. If you and your spouse are legally separated, and later decide to pursue a divorce (say because one of you wants to get married to someone else), you will have to go through all of the same steps you did when you “legally separated.” Thus, if you are sure you want to end your marriage, it might make more sense to pursue a divorce, unless you wish to remain legally married for a specific reason, such as a religious belief against divorce.

What issues need to be addressed in a divorce or separation?

Four broad categories need to be addressed:

1. Division of property
2. Division of debts
3. Alimony (also called “spousal support” or “maintenance”)
4. Children’s issues (custody, visitation or timeshare, and child support).

How long do I have to live in New Mexico to file for a legal separation or divorce?

At least one spouse must live in New Mexico for six months before filing for divorce. That six-month prerequisite does not apply to a legal separation. However, if children are involved, the children must live in New Mexico for at least six months before the court has jurisdiction to decide custody, visitation, and child support.

What if my spouse opposes the divorce?

New Mexico is a “no fault” state, which means the other spouse cannot prevent the divorce from happening. The standard basis for divorce is the no-fault ground of “incompatibility” with no reasonable likelihood of reconciliation, which just means the couple can’t get along anymore, and there is no chance they will get back together.

There are still a few “fault” grounds on the books in New Mexico, including adultery, abandonment and cruelty (emotional or physical abuse), but these aren’t used very often.

What legal papers are involved in getting a divorce?

More complicated cases require additional legal documents called “pleadings”, but a basic divorce involves the following:

• Petition for Dissolution of Marriage
• Summons & Return of Service (to have the petition served on the Respondent)
• Temporary Domestic Order
• Answer to Petition for Dissolution of Marriage (and possibly Counter-Petition)
• Marriage Settlement Agreement (deals with property, debts and alimony)
• Parenting Plan (if there are children involved)
• Order to Withhold Income (for child support and/or alimony)
• Qualified Domestic Relations Order (to divide certain types of retirement benefits)
• Final Decree of Dissolution of Marriage (finalizes the divorce).

You can access a few family law forms on the New Mexico State Judiciary website.

How does property get divided?

Community property and debts-
New Mexico is a “community property” state, which means that each spouse is entitled to receive one-half of all property acquired during the marriage, including retirement benefits. It also means that spouses are responsible for taking on one-half of all debt, including debts they didn’t know about.

Rarely, however, does each and every piece of community property get split down the middle or each debt get split 50-50. Usually, the value of all the community property is added up, the community debts are subtracted from the assets, and whatever is left over gets divided.

Separate property and debts

Separate property continues to belong to the spouse who owned it. Separate property includes any property owned before the marriage, property received specifically by either spouse as a gift during the marriage, and property inherited by either spouse during the marriage. Similarly, debts owed before marriage continue to be separate debts.

The proceeds from separate property also remain separate. For example, if you inherited a house from your parents while you were married and then rented it out, the rent proceeds should remain your separate property.

Problems arise when separate property gets “commingled” or mixed up with community property, for example, where one spouse owns a home before marriage, but both spouses use their community property earnings to pay the mortgage and property taxes during the marriage. With commingled property such as this, figuring out what portion is community and what portion is separate can be very complicated.

If you have questions about characterization, you should contact an experienced family law attorney for help.

How long does it take to get divorced?

After one spouse files a “Petition for Dissolution of Marriage” (the legal paperwork requesting a divorce), the other spouse (called the “respondent”) has 30 days to file an “Answer” to the divorce petition. However, spouses can agree to waive the 30-day period. And, once the final divorce decree is filed, a couple is considered divorced; there is no waiting period for it to become effective.

With that said, couples who choose to fight over every issue, who refuse to seriously discuss settlement, and who require a full-blown divorce trial can successfully drag out a divorce for years and rack up thousands upon thousands of dollars in attorneys’ fees, expert witness costs, and court fees.

Do we have to appear in court?

No. Most couples are able to settle all divorce or separation issues without going to court. They can do this by sitting down at the kitchen table and negotiating directly with one another (in the case of a very amicable and simple separation or divorce).

Couples that may not be able to negotiate on their own, or who have more complicated issues, can hire their own attorneys and possibly a third-party mediator to help facilitate in-person settlement discussions and negotiations.

If spouses agree on all issues, they will need to sign a “marital settlement agreement” (which their attorneys can draft) and a proposed final divorce decree: both must be submitted to the court. Once these documents are approved and signed by a judge, and the paperwork is filed in the clerk’s office, the divorce will become final.