New Mexico Statutes Chapter 40, Article 4 - Dissolution of Marriage

New Mexico allows divorce on four grounds: incompatibility (no-fault), cruel and inhuman treatment, adultery, or abandonment. Incompatibility is the most commonly used ground and means the marriage is broken beyond repair due to discord or conflict with no reasonable prospect of reconciliation.

Effective: 2024

Defines incompatibility as existing when there are such differences between the marriage partners that make continuation of the marital relationship impossible due to discord or conflict of personalities. Neither spouse needs to prove the other's fault — either party can file based solely on incompatibility.

Effective: 2024

The court has jurisdiction when at least one spouse has resided in New Mexico for at least 6 months before filing and has a domicile (physical presence plus intent to reside permanently) in the state. Military members continuously stationed in New Mexico for 6 months are deemed domiciled in the state and county of their installation.

Effective: 2024

Divorce proceedings may be filed in the county where either spouse resides. The court has jurisdiction over all property of the parties, wherever located or situated within New Mexico, including both community and separate property.

Effective: 2024

New Mexico is a community property state. Community property is all property acquired by either or both spouses during marriage that is not separate property. Separate property includes assets acquired before marriage, by gift, bequest, devise, or descent, by court judgment, or by written agreement between the spouses. Quasi-community property is treated as community property when both spouses are New Mexico domiciliaries at the time of dissolution.

Effective: 2024

On final hearing, the court may divide property and set apart portions of each spouse's property or income. The court aims for an equal division of community property and has broad discretion in choosing any reasonable method to achieve that goal. Community property becomes separate property of each spouse once divided by the divorce decree.

Effective: 2024

Property acquired during marriage is presumed to be community property. The party claiming an asset is separate property bears the burden of proving it. Property acquired by a married woman before July 1, 1973, is presumed to be her separate property under the older statutory framework.

Effective: 2024

If a party dies during pending divorce or separation proceedings, the case does not automatically end. The court must still conclude property division as if both parties had survived. There is no statute of limitations for dividing retirement benefits that were omitted from the original decree.

Effective: 2024

When spouses have permanently separated and no longer live together, either may file for division of property, disposition of children, or alimony without requesting a dissolution of marriage. This allows a legal separation that divides assets while the marriage technically continues.

Effective: 2024

Courts determine custody based on the best interests of the child, considering: (1) the parents' wishes, (2) the child's wishes, (3) the child's relationships with parents, siblings, and others, (4) the child's adjustment to home, school, and community, and (5) the mental and physical health of all individuals. A child aged 14 or older has the right to express a preference that the court must consider.

Effective: 2024

There is a presumption that joint custody is in the best interests of the child. The court considers 8 additional factors beyond the §40-4-9 list, including each parent's relationship with the child, ability to provide care, willingness to share parenting, ability to allow the other parent to provide care, geographic distance, and the parents' ability to communicate and cooperate. The court may not prefer one parent solely because of gender.

Effective: 2024

When joint custody is awarded, the court must approve a parenting plan dividing the child's time into defined periods of responsibility for each parent. Each parent must have significant, well-defined periods of responsibility. When custody is contested, the court shall refer the issue to mediation if feasible. The court must also state in writing its specific basis for granting or denying joint custody.

Effective: 2024

A parent with joint custody must provide 30 days' written notice before relocating to another city or state. The non-relocating parent has 30 days after receiving notice to file an objection with the court. Failure to object in a timely manner may prevent a parent from opposing the relocation. The court evaluates relocation requests based on the child's best interests, including the parent's reason for moving and the impact on the child's community ties.

Effective: 2024

In contested custody cases, the court may appoint a guardian ad litem to represent the child's best interests. The guardian ad litem investigates the family situation and makes recommendations to the court. This provides an independent voice for the child in custody disputes.

Effective: 2024

New Mexico courts may award five types of spousal support: (a) rehabilitative (with a plan for education or training), (b) transitional (limited period to adjust to single income), (c) indefinite duration, (d) lump sum payable in installments subject to death of the recipient, or (e) lump sum not subject to any contingencies. The court considers 10 factors including: age and health, current and future earnings, efforts to become self-supporting, reasonable needs and marital standard of living, medical insurance needs, property division, duration of marriage, homemaker contributions, and any agreements between the spouses.

Effective: 2024

The court retains jurisdiction over spousal support in marriages lasting 20 years or more, unless the decree specifically provides that no support shall be awarded. This means either spouse can return to court to request or modify support even after the divorce is finalized, providing long-term protection for homemakers in extended marriages.

Effective: 2024

Child support is calculated based on both parents' combined income using a state schedule, with each parent paying proportionally. Worksheet A applies when one parent has primary custody; Worksheet B applies when parents share at least 35% of parenting time (approximately 128 days/year), multiplying the basic obligation by 1.5. As of January 1, 2024, the guidelines incorporate a self-support reserve (SSR) ensuring low-income payers retain enough income for basic subsistence. If a parent is willfully unemployed or underemployed, income may be imputed based on earning potential.

Effective: 2024

Courts may deviate from the guidelines upon a written finding that strict application would be unjust or inappropriate. The order must state what the guideline amount would have been and justify the variance. Whenever guidelines require a parent to pay more than 40% of gross income for a single child support obligation, there is a presumption of substantial hardship justifying a downward deviation.

Effective: 2024

Child support may be modified upon a showing of material and substantial changes in circumstances. A change of more than 20% from the current order (when recalculated using current incomes and filed more than one year after the prior order) creates a presumption of changed circumstances. Both parents must exchange annual financial information — including tax returns, W-2s, 1099s, daycare costs, and insurance premiums — upon written request.

Effective: 2024

The court may order income withholding directly from a parent's wages or other periodic income to enforce child support. Withholding can be ordered without a prior delinquency. The procedures follow the Support Enforcement Act (§40-4A-1 et seq.), and welfare payments received by the custodial parent do not reduce the non-custodial parent's support obligation.

Effective: 2024

The petition for dissolution of marriage must be verified — meaning the filing spouse must sign under oath that the facts stated in the petition are true. This is a procedural requirement to begin divorce proceedings in New Mexico.

Effective: 2024

While the divorce is pending, the court may issue temporary restraining orders on property use or disposition, temporary custody orders, and temporary support orders for either spouse. The court may also order payment of litigation expenses to ensure both parties can prepare and present their case effectively.

Effective: 2024

Spouses may voluntarily agree to resolve divorce issues — including property division, child support, custody, spousal support, and attorney fees — through binding arbitration. The court cannot compel arbitration without the parties' written consent. Arbitrators must be attorneys with at least 5 years of experience (3 in domestic relations) and must apply child support guidelines when setting support. The arbitrator must issue a written award within 60 days of the hearing. Arbitrators may not decide criminal matters or domestic violence protection orders.

Effective: 2024

When custody is contested, the court shall refer the issue to mediation if feasible. The court may bypass mediation if it determines mediation is not feasible, including in domestic violence situations. The court may also use auxiliary professional services such as expert evaluations under the Rules of Evidence. Mediation is available for financial matters as well upon request.

Effective: 2024

The court may order either spouse to maintain a life insurance policy as security for spousal or child support payments. This ensures that support obligations are protected in the event of the paying spouse's death, providing financial security for the receiving spouse and dependent children.

Effective: 2024

Allows any victim of domestic abuse to petition for an Order of Protection against a household member. Covers spouses, former spouses, co-parents, and persons in continuing personal relationships — cohabitation is not required. The court may grant temporary emergency orders, award temporary custody, order the abuser to vacate the residence, and prohibit contact. Violation is a misdemeanor; a second violation carries a mandatory minimum 72-hour jail sentence. The court may also issue a permanent no-contact order in cases involving serious physical harm.

Effective: 2024

Prenuptial agreements must be in writing, signed by both parties, and acknowledged (notarized). They are enforceable without consideration. Parties may agree on property rights, spousal support issues, and choice of law, but may not adversely affect a child's right to support or a spouse's right to child custody. A prenup may be voided if signed involuntarily, or if it was unconscionable and one party was not given fair financial disclosure. After marriage, amendments or revocations must also be in writing and acknowledged.

Effective: 2024

Any New Mexico resident aged 14 or older may petition the district court for a legal name change. The petition must be published in a newspaper for at least 2 weeks before the court hearing. During a divorce, a spouse may request restoration of their former or maiden name in the final decree without a separate petition or publication — this is the simplest path. If omitted from the decree, a standalone petition is required.

Effective: 2024

Unpaid child support and spousal support accrue interest on any delinquent amounts. This creates a financial incentive for timely payment and ensures that the receiving spouse or child is compensated for the delay. The interest adds to the total judgment amount owed by the delinquent party.

Effective: 2024

When community property is insufficient to provide adequate support, the court may award alimony from a spouse's separate property. This ensures that a dependent spouse is not left without support simply because the couple had little community property, particularly in cases where one spouse holds significant separate assets.

Effective: 2024

A spousal support award constitutes a lien on the paying spouse's real estate within the county where the decree is entered. This provides the receiving spouse with security for the support obligation, similar to a mortgage or judgment lien, preventing the paying spouse from disposing of property to avoid support payments.

Effective: 2024