There are four main categories in divorce. Every case will discuss “property division,” which includes all assets and debts accumulated during the marriage. The other three areas of divorce (child support, child custody, and spousal support) may or may not apply to your case depending on your circumstances. Each area of divorce has its own strategies, whether you are negotiating with the other party or litigating in front of a judge. Divorce law is constantly changing. Divorce can be affected by changes to state and federal law, and the New Mexico Court of Appeals and Supreme Court are reviewing cases and making decisions that change the way divorce is practiced or how a judge will decide an issue. It is important to have a firm grasp on all areas you need to address in your case in order to achieve a fair and timely divorce.
Every case must enter a “Marital Settlement Agreement” which divides assets and debts accumulated during the marriage, otherwise known as “community property.” Debts and assets are both often referred to as “property,” but it is important to remember this term does not just mean real estate. Common assets include houses, vehicles, bank accounts, retirement funds, and household goods. Common debts include credit card debt, mortgages, and title loan on a vehicle.
The length of the marriage can have a big impact on how difficult it is to divide debts and assets. Generally speaking, the longer a marriage, the more assets and/or debts there may be to divide, and so the more potential there is for argument. A lengthy marriage also increases the possibility that spousal support will be an issue. Disagreements between spouses, which may have contributed to getting a divorce, to begin with, can also make it difficult to divide property. For example, if one spouse to the marriage was a spender and the other spouse was frugal, the spendthrift spouse often does not want to be held responsible for the debts the other spouse entered into. However, it is generally very difficult to separate out debts from a marriage. Even if only one spouse signs up for a credit card or signs a loan for a vehicle, more often than not it will still be considered a community debt. Many people also struggle over separation of retirement funds. Even if only one spouse was contributing to a 401k or has a pension from an employer, any funds or interest in a retirement accumulated during marriage are divisible. It is important to remember that while feelings of fairness between spouses can contribute to negotiations if you end up in court the judge will divide property as equally as possible, and not always in the way you would have liked.
“Separate property” refers to those debts and assets belonging to a person prior to marriage. Most of the time, separate property remains separate in a divorce. If you owned a vehicle prior to marriage, that vehicle will still belong to you and your spouse cannot claim value in it. Some types of debts are almost always separate, such as student loans and gambling debts. However, exceptions do apply. A loan on a separate property could create a “community lien.” The most common way that separate property becomes community property is if the property is “transmuted” (i.e. transferred) into the community during the marriage. This could happen by selling an asset and using the funds toward something in the marriage. If the funds can be easily tracked and separated, a spouse may argue that it remains separate property.
If you have a child who is a minor (under 18 years old or still in high school), your divorce will also include orders for child custody and child support in what is often referred to as a “Parenting Plan.” There are two types of custody: physical custody (timesharing) and legal custody (decision-making). Child custody is determined by the court according to the child’s “best interest.” There are many factors the court will look to when deciding what this best interest is, including the wishes of the parents as well as the wishes of the child, depending on the child’s age. Child custody orders are often modified as children get older, or if something about the child’s circumstances changes that merit different timesharing or legal custody arrangement.
Important concepts and considerations are outlined in more detail on our “Child Custody” page.
Child support is included in the Parenting Plan and is ordered until the youngest child turns 18 years old or graduates from high school, whichever occurs last (if you have multiple children, child support can be modified as each child emancipates). Child support is calculated according to a formula provided in New Mexico statutes, however how numbers are calculated for the worksheet can depend on a number of factors. Parties are legally entitled to exchange financial information every year to evaluate child support, and if the numbers on the worksheet have changed enough, child support can be modified. Getting a lawyer’s help to correctly calculate child support can be invaluable and make a big difference in your monthly child support numbers.
Go to our “Child Support” page for more information on what should be considered when calculating child support.
Spousal Support and Alimony
Every divorce case must also determine if spousal support is needed and, if so, how much should be paid. While the court does have a “guideline” for spousal support, there is no exact formula in our statutes like there is for child support. Instead, New Mexico statutes provide us with a list of “factors” the court will consider. Length of the marriage and income of the parties are important factors, as the lower the incomes and the shorter the marriage, the less likely it is that spousal support will be ordered. How your property is divided could also affect spousal support. Unfortunately, such ambiguity in spousal support means this topic can drag on a divorce much longer than other issues. Overall, spouses are more likely to be happier with a spousal support arrangement they agreed on, rather than what the judge decides. The parties can also choose between several different types of payments, such as one lump sum payment or indefinite monthly payments.
More information on spousal support is located on our “Spousal Support” page.
Before the court sends a divorce to trial, the judge will order the parties to attend some sort of mediation. There are two types of mediation. The parties can agree to mediation face-to-face and without attorneys to resolve their disagreements, or the court will set up a “settlement facilitation,” a more formal setting with attorneys present and the parties are placed in separate rooms as the facilitator goes between each room with offers and counter-offers. In either case, a mediator is appointed as a neutral party to help make an agreement. The mediator does not take sides in the dispute and does not offer legal advice, but will help steer communication in a positive direction toward resolution.
Mediation is a useful tool to resolve a divorce without the additional time and expense of going to trial. Mediation is not all-or-nothing. For example, parties can resolve property division, but continue to disagree on child custody. Partial resolution is still useful, as it narrows down the issues for trial, and therefore it is likely you will get a faster trial date from the court.
It is important in a divorce process to be flexible and creative when making agreements. There is often more than one way to reach an equitable outcome. For example, if it is important to one spouse to keep their retirement intact, perhaps the other spouse would accept a larger equity payment from a house. Finding a custody arrangement where the child has quality time with both parents and smooth transitions between households will not only reduce parental conflict but will benefit the children immensely. When spouses reach an agreement for divorce, the Court will rarely interfere with the agreement as long as the division seems reasonable and equitable. However, some compromises are not advisable. Many people may want to keep the agreement vague or not mention debt or asset in order to keep the peace, however, it is very important to be as specific as possible in your divorce agreement so that the order can be enforced and there are no surprises down the road.
The final order of divorce also often includes a change of name for one spouse. This is not a free-for-all name change, but a spouse’s prior name can be restored if it was changed for marriage. A spouse does not have to change his or her name upon divorce but can choose to retain the married name (this is a common choice for people with children or who have established name recognition/branding in their career). Change of name in the final order of divorce is the first step, as that spouse must then go through the lengthy process of the name change on other legal documents (social security card, driver’s license, accounts, etc.).
A divorce is not final until a judge has signed the order of divorce. In some cases, a judge will allow you to “bifurcate” your divorce (grant your divorce before a Marital Settlement Agreement or Parenting Plan are entered), but more often than not the judge will require all issues to be settled before a divorce is granted. While the divorce order is “final” (i.e. you are divorced), specific parts of the order – such as the timesharing schedule, the child support amount, or spousal support payments – could be changed after the order is entered, under the right circumstances.