Divorce
Basics
New Mexico was the first no fault divorce state. No fault means two things. First, no one has to be at fault in order to get a divorce. Second, there is no "fault" stage to the divorce. The Court is not going to label anyone at fault; no one is going to be labeled a bad person. Even if someone was a bad spouse, they still get half of everything acquired during the marriage.
New Mexico is a community property state. The marriage creates a 'community'. From the date of marriage forward, all assets and all debts acquired during the marriage are owned 50-50 by the spouses. For example, if one spouse runs up a bunch of debt in their name only, the other spouse is still liable for half that debt. Also, if only one spouse earned retirement during the marriage, then the other spouse owns half that retirement.
Assets acquired before the marriage, or during the marriage by gift or inheritance, is sole and separate property. A spouse has no claim to the sole and separate property of the other spouse.
Child Support
Child support is set by statute. There is a formula that is used and that is the amount to be paid. Child support is based on both parents' gross (before tax) monthly income. A parent's expenses are not considered for the child support calculation. Other factors that influence the amount of child support are the amount of time the children spend with each parent, cost of daycare, and cost of health insurance for the children.
A child support calculator can be found at Self-Help Guide | New Mexico Courts (nmcourts.gov)
Custody and Visitation
New Mexico has physical custody and legal custody. Physical custody is time sharing - how much time the children spend with each parent.
There is no set statutory time sharing schedule, like Texas has. Rather, it is usually set up around the parents' work schedules. There is no thing in New Mexico as "joint" physical custody; there can be 50-50 timesharing, but it is not referred to as "joint".
Legal custody is "joint" legal custody. This means joint decision making on major decisions, such as education, sports, religion, and medical decisions.
Adoption
Adoptions must occur in the county where the adoptee resides.
Family adoptions, such as by a step-parent or grandparent, are much easier than non-family adoptions. Still, there is a lot of paperwork with an adoption.
An adoption cuts off the parental rights of the biological parent/s. A new name can be given the adoptee. A new birth certificate will be issued showing the adoptive parents as the birth parents of the adoptee.
An adoption is the favorite case in the courthouse because it is such a happy occasion.
Guardianship
There are Guardianships for incapacitated children and adults. If your minor child is disabled, you need a guardianship for her for when she turns 18, because at that time, she is an adult and you are not able to make decisions for her without a guardianship. Guardianships of this sort have a lot of paperwork to actually prevent a guardianship. This was designed this way to prevent others from taking someone's money or assets. However, the protection applies in all cases. Guardianships for incapacitated persons is permanent.
A kinship guardianship, on the other hand, is not designed to be permanent. It can only be used in limited cases, such as where the child has been living with the proposed guardian without the parent for 90 or more days and a parent is unwilling or unable to provide proper care, maintenance, or supervision for the child. The kinship guardianship gives the guardian legal authority to provide medical care for the child, enroll the child in school and sports, and have legal authority over the child just as a parent would.
Frequently Asked Questions
How much is your retainer?
Unfortunately, there are lots of things that can change the retainer amount. Mr. Bristol will go over the options and prices based on the specifics of your case during your consultation.
How are assets divided in a divorce?
Any asset owned pre-marriage, or received after marriage by gift or inheritance, belongs only to that person. Any asset (or debt) received after marriage is owned 50-50 and is therefore usually split 50-50, regardless of whose name is on it.
Do I need a reason to get divorced, like infidelity?
No. New Mexico was the first no-fault divorce state in the country. Before Nevada, even. No-fault means 1) you don’t have to have a reason to get divorced (no one has to be “at fault”) and 2) assets and debts are divided without regard to “fault” or bad behavior.
Does the mother automatically get custody of the children?
No. The statutes say that both parents are on equal footing when it comes to custody. Custody is not about what the parents want; it is about what is best for the children. Parents should come up with their own solution.
What is the difference between kinship guardianship and adoption?
Kinship guardianship was designed for a temporary problem and for the children to have someone who can legally take them to the doctor and enroll them in school and sports. For example, if a parent is in jail or on drugs, a relative can get kinship guardianship to have legal authority to enroll the children in school, etc. When the biological parent gets their act together, they can petition to have the children returned to them.
In contrast, an adoption permanently severs the parent-child relationship.
