FAQ: What's Involved in a Divorce - Text

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Notice:
This presentation is intended for basic informational purposes only and does NOT contain a complete explanation of family law. We highly recommend that you obtain a lawyer to help you understand your situation, and to interpret the laws and guidelines that apply to your case.

1.0 Background
What’s Involved in a Divorce or Paternity Action gives you information on the laws, rules and issues involved in a divorce or paternity action. (A paternity action is where the parties are not married but have children or the woman believes the man to be the father of the children.)

In New Mexico, certain laws and rules govern family relationships. If you choose to represent yourself, you must become familiar with, and follow, these laws and rules.

When you file court papers or appear in court as a self-represented litigant, you are your own lawyer. Get the help you need before you file your papers with the court or appear in court on your case.

The laws, also called statutes, can be found under Chapter 40 of the New Mexico Statutes.

The New Mexico Rules of Civil Procedure, found in the New Mexico Rules Annotated (sometimes referred to in writing by the letters “NMRA”), explain the process or procedures to use in your case.

You can find the New Mexico Statutes and the New Mexico Rules on the internet at www.nmcourts.com, or at various locations throughout the state including law libraries.

Domestic Relations Forms can be used for resolving certain family law issues. These forms are located in the New Mexico Rules Annotated, sections 4A-100 to 4A-363. The Domestic Relations Forms can also be found on the Supreme Court website at www.supremecourt.nm.org.

Interactive Domestic Relations Forms for self-represented litigants can be found here.

2.0 Divorce
In order to get a divorce in New Mexico, you only need to state that you and your spouse are incompatible and, therefore, you do not plan on getting back together. You do not have to give the court any other reason for ending your marriage and the court does not need to decide which spouse is at fault. If you do try to prove that your spouse is at fault, the judge likely will focus your attention on other matters that concern the court, such as issues involving children and property and debt from the marriage.

When a couple seeks a divorce usually several issues need to be resolved, including division of property and debt, and spousal support, also referred to as alimony. And if the parties have children, the parties must address children’s issues which are: child custody arrangements, timesharing, and child support payments.

Parties who have never been married but have children must address these children’s issues as well.

3.0 Separation
When a couple is not able to live together as husband and wife, either one may ask the court to divide their property and to make a decision with regard to child support, child custody and spousal support. There is an alternative to divorce that some people choose called a “legal separation.” Be aware that a legal separation does not constitute a divorce and, therefore, you and your spouse are not free to marry another person.

4.0 Property & Debt
When a couple chooses to divorce or legally separate, they divide up their property and their debts from the marriage. Property and debt issues can be very complex. You may want to see a lawyer about questions you may have.

This is only a very brief overview of property law and is NOT a complete explanation.

Generally, the courts recognize two types of property: community property and separate property.

Separate property usually is property that you acquired before your marriage or property that you acquired during your marriage either as a gift, by inheritance, or by will. Generally you and your spouse do not split separate property – each of you keeps your own separate property. Separate property is defined in New Mexico law at NMSA 40-3-8.Generally, any property that you and your spouse acquire during the marriage that is not separate property is considered community property.

Community property is divided in a divorce; separate property usually is not. You should check with a lawyer if you have questions about what is community and what is separate property.

Debt is very similar to property. There are two types of debt: community debt and separate debt. Community and separate debt are defined in New Mexico law in NMSA 40-3-9 and 9.1. Generally speaking, any debt acquired during the marriage, including credit card debt that is not separate debt, is community debt for which both parties are responsible.

Several types of debt may be considered separate debt. You should check with a lawyer if you have questions about what is separate or community debt. The parties may agree as to who is responsible for the debts, or the court may divide up the debts between a husband and wife. However, creditors will not be bound by the parties’ or the court’s allocation of responsibility, and may seek payment from the former spouse if the other party does not pay the debt.

5.0 Spousal Support
A judge may order either a husband or a wife to financially support the other person – this is referred to as spousal support or alimony. Spousal support is a very complex area of the law. If you have a spousal support issue in your case, you should see a lawyer.

If you agree on how to handle all issues in your divorce, there are forms you can use. Interactive Domestic Relations Forms for self-represented litigants can be found here.

6.0 Children’s Issues
When you and your spouse have minor children or in cases where the parents have never been married but have children (called a “paternity action”), you will need to address what will happen with the children.

The major issues are: who makes major decisions in the children’s lives; how much time will the children spend with each parent; and how much money each parent will pay to support their children financially.

First, there are two major decisions that need to be made: what form of legal custody arrangement you will have and what the timesharing arrangement will be. When making these decisions a court must consider the “best interests” of the children, as well as what the parents desire. The first major decision is to determine legal custody.

Legal custody determines who has the power to make major decisions about the children, such as the school the children will attend, what doctor is used, and what recreational activities the children will take part in. Legal custody does not determine how much time the children will spend with each parent.

There are two types of legal custody: joint custody and sole custody. Joint custody means that both parents have a say in major decisions in their children’s lives and must work together to make these decisions. The judge will presume that joint custody is in the “best interests” of the child. This means that the judge assumes that it is best for the children to have both parents actively involved in making major decisions for their children. While joint custody does mean that both parents make major decisions, joint custody does not mean that each parent will spend an equal amount of time with a child. Oftentimes, one parent is a primary caretaker and the other parent has defined periods of time with the children.

Sole custody means that the custodial parent makes the major decisions for the children. It does not mean that the other parent does not see the children, or only sees them when the custodial parent allows. If the judge determines that co-parenting is impossible or unrealistic, the judge will award sole custody as being in the “best interests” of the children.

The second major decision after determining the legal custody issues is to determine the timesharing plan for the children. Regardless of whether you or your spouse have joint or sole custody, you need to develop a timesharing plan. This is a schedule for the amount of time the children will be with each of you. Studies show that children need predictable contact with each parent. Having a timesharing plan benefits everyone involved when it contains enough details showing when the children will be with each parent, regularly and on holidays. Arguments over timesharing happen all too often and studies show that when parents fight over their children, the children suffer immediate and future effects.

It is important to remember that children’s needs change over time. What works as a timesharing plan for an infant is usually very different than what works for a fourteen-year-old. It is good to recognize at the beginning that you will need to reconsider the timesharing plan from time to time. A court has the power to change any issue related to the child, including the timesharing plan, as long as the child is a minor. When a couple cannot agree on custody and timesharing, the court often will require the couple to attempt to resolve these issues with the help of a mediator. If mediation fails, the court may require that a mental health professional evaluate the family and look at a child’s relationship with the parents. The evaluator will then make a recommendation to the court.

Once the custody and timesharing decisions are made, either by agreement or by the judge, you and your spouse will need to file a parenting plan which contains a description of the custody and timesharing decisions. The plan can also list other factors, such as where the children will go to school and who their doctors are.

7.0 Child Support
After the custody and timesharing plans are decided, the court decides the child support issues. Both parents have the responsibility to contribute to the expenses necessary to raise the children. Usually this means that the parent who has the least time with the children will pay some amount of child support to the parent who has the children the majority of the time. Child support also looks at the parties’ income. In New Mexico, child support is calculated by using a specific formula set out in the statutes. Child support can be taken directly from the paycheck of the person paying the support. This can be done with a wage withholding order. This order is signed by the judge and tells the employer that they must send part of the paycheck to the parent who is owed support, or to the Child Support Enforcement Division, who then gives it to the parent who is owed support.

The amount of financial support that a child will receive is based on the “gross monthly income” of both parents. Gross income includes nearly any source of income, including income from rental property and other investments. It is the total amount earned before any deductions are taken out of your paycheck.

Once the gross income of the parents has been determined, the parties and the judge can refer to the child support guidelines in the statute to determine what specific amount of support a child will receive. After the amount of child support is determined, this amount is plugged into a worksheet that determines how much each parent will contribute to this monthly child support. This required worksheet and the instructions for completing it are found in the statute. This website has an interactive Child Support Worksheet that calculates the Child Support owed based on the information you put into the computer. The statute cite is NMSA 40-4-11.1.

Because the formula for calculating child support is set under New Mexico law, a court usually will NOT allow you and your spouse to agree to a different amount of child support. Some forms related to children’s issue can be found here.

8.0 Uniform Parentage Act
The Uniform Parentage Act provides for child support and child custody for people who are not married but have children. There are generally two issues: is the man in the paternity action proven to be, or does he admit to be, the father; and how will issues related to the children be addressed. The issues related to the children are the ones set out above.

If the man does not admit to being the father of the child, these cases can be very complex. You should see a lawyer if this is the case for you. These contested paternity cases can involve things such as DNA testing. If the man admits to being the father and the parents agree to the issues regarding the children, you may fill out forms prepared for uncontested paternity cases. These forms can be found here.

9.0 Conclusion
When you file court papers in a court for divorce or paternity, there is a great deal of information that is important and you must make many important decisions about your life. Please get the help you need. If you follow these suggestions, the court can more quickly and efficiently resolve the issue that brought you to court.

New Mexico Administrative Office of the Courts. (Approved video script ver .09 5/23/02)