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New Mexico Marital Settlement (Divorce) Agreement

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New Mexico Marital Settlement (Divorce) Agreement

Updated August 29, 2023

A New Mexico marital settlement agreement is a legal contract between two spouses that dictates how to settle their affairs at the dissolution of their marriage. This agreement can be executed before a petition for divorce is filed; otherwise, a settlement agreement is introduced right before a judge signs a final decree of the dissolution of marriage. It is comprised of a number of provisions that govern how the spouses’ property will be divided, who will receive spousal support and how much/for how long, who will maintain child custody, and how child support will be split amongst the parties. While a marital settlement agreement helps define the terms of a divorce, a divorce is not final until the parties receive the final decree from the judge assigned to the case.

Table of Contents

Divorce Laws

Statutes – Chapter 40, Article 4 (Dissolution of Marriage)

Alimony (§ 40-4-7) – Alimony, more commonly referred to in New Mexico law as spousal support, may be awarded to either party as deemed appropriate by the court. The following circumstances are considered by the court in deciding the appropriate order of spousal support (§ 40-4-7(E)):

  • Age, health, and means of support
  • Current and future earnings and earning capacity
  • Effort to maintain employment or become self-supporting
  • Reasonable needs, including:
    • Standard of living during marriage
    • Medical insurance
    • Life insurance of paying party
  • Duration of marriage
  • Property division
  • Assets
  • Liabilities
  • Income from properties
  • Marital settlement agreement (if applicable)

Alimony Calculatorcalculators.law

Child Support (§ 40-4-11.1) – Child support is determined by the combined income of both parents. The Basic Child Support Schedule (Guidelines) is set forth in § 40-4-11.1(M) of the New Mexico statutes.

Division of Property (§ 40-3-(6-17)) – New Mexico is one of the nine (9) states that adhere to the laws of community property in lieu of the equitable distribution law. All property and assets acquired during the marriage are considered to be jointly owned by the spouses and will therefore be split evenly between them in a dissolution of marriage, regardless of who made the purchase or whose name is on the title. Furthermore, all debts incurred during the marriage are deemed to be community debt, except those defined as “separate debt” in § 40-3-9(A) and § 40-3-9.1.

Grounds for Divorce (§ 40-4-1) – The court may decree an order for the dissolution of a marriage on any of the following grounds:

  • Incompatibility
  • Cruel and inhuman treatment
  • Adultery
  • Abandonment

Interim Support (§ 40-4-7(A)) – During the divorce proceedings, the court may order that spousal support (alimony) be provided for either party.

Residency (§ 40-4-5) – In order to legally file for divorce in New Mexico, either spouse must own a residence in the state and must have resided in the state for six (6) months preceding the date they filed the petition for divorce.

Separation (§ 40-4-3)- No separation requirement exists in New Mexico law for a couple to obtain a divorce decree from the court. A legal separation will generally consist of the same proceedings as a divorce, with petitions for division of property, child custody, and child/spousal support. This makes the spouses legally separated, but their marriage is not completely dissolved so remarriage is not an option. 

Divorce Forms

Uncontested Divorce with No Children:

Uncontested Divorce With Children:

How to File for Divorce in New Mexico (4 steps)

  1. File Petition
  2. Serve Respondent
  3. Respondent’s Answer
  4. Marital Settlement Agreement and Final Decree

1. File Petition

A woman writing a check for the clerk of court filing feeTo obtain a legal divorce, or “dissolution of marriage” as it is referred to in New Mexico, one of the spouses must file a petition for the dissolution of marriage with the district court located in the county in which they reside. For either party to file for divorce, at least one of the spouses must be living in the state of New Mexico for six (6) months prior to filing the action. To begin the dissolution process, the petitioner must complete the following documents:

These forms are to be copied so that the petitioner may retain a copy of each document for their records and file a copy of each with the court clerk. The clerk will demand a filing fee of $137 and will assign a judge and a case number to the petition. In some cases, a Temporary Domestic Order may be issued for the security of the parties and to protect their interests.

2. Serve Respondent

notice of a divorce hearing on single sheet of paperIn a dissolution case, the non-filing spouse is called the respondent. The petitioner must deliver copies of the Petition, the Summons, and the Temporary Domestic Order (if applicable) to the respondent. Delivery of these documents must be made by an individual over the age of eighteen (18) and who is not a party to the divorce proceedings.

3. Respondent’s Answer

New Mexico Clerk of Court counter with employee reviewing documents.The respondent has thirty (30) days to respond to the petition once it has been served. To speed up the divorce proceedings, the respondent can file an answer within the allotted timeframe and the parties can proceed to the final step of the process. If the respondent fails to answer, the petitioner may request a default judgment. This request enables a judge to set a hearing, examine the details of the case, and, in most cases, enter a default judgment in favor of the petitioner. Alternatively, the spouses may choose to have a mediator handle the case, allowing them to come to a mutually beneficial agreement, with or without attorneys present, to avoid court action. If the respondent answers but does not agree with the petition, it becomes a contested divorce action and the case will be decided by trial in front of a judge. The proceedings will most likely be a lot longer and can be very costly for both parties.

4. Marital Settlement Agreement and Final Decree

The final step of the dissolution of marriage process is the final judgment. If all issues regarding the division of property, spousal support, child support, and child custody have been agreed upon by the parties, a Marital Settlement Agreement can be executed. A Final Decree of Dissolution of Marriage will also have to be completed and signed by the parties. It is with this form that the petitioner or respondent, or both, may revert to their former name. Confirming a name change during the divorce process will enable the parties to avoid filing a separate petition for a name change with the district court. The Decree document used in this step will depend on the situation; the parties will either fill out the Final Decree of Dissolution of Marriage Without Children or Final Decree of Dissolution of Marriage With Children. If the parties have minor children together, copies of the following documents will also have to be completed:

All forms must be filed with the Domestic Relations Clerks Office. After a week (this timeframe could be less or more depending on the workload of the office), the parties can pick up the Final Decree of Dissolution of Marriage that has been approved and signed by the judge finalizing the divorce.