Process of Filing a Divorce
A divorce is initiated by the filing of a complaint for divorce. In New Mexico, most divorces are filed on the grounds of incompatibility. There is no defense to the grounds of incompatibility and no specific proof of incompatibility is required. Therefore, minimal testimony is required to establish the cause of the divorce.
Once a divorce has been filed, an answer and counterclaim must be filed by the opposing party within 30 days of the service of the original papers.
In order to file for divorce in New Mexico, one must be a resident for six months immediately preceding the filing. However, if residency is an issue, another option is to file an action for legal separation, which does not require a six month residency.
Shortly after the divorce commences, the attorneys will engage in a process called “discovery” during which all assets, liabilities, and income will be identified and valued. This can be done informally by the attorneys or through a much more time consuming and complex process known as “formal discovery” that utilizes document production requests, interrogatories, depositions, and subpoenas.
At the time the divorce is filed, it is often important to seek temporary court orders, which will be in effect while the divorce is pending. These court orders include: custody and parenting time allocations child and spousal support temporary restraining orders to prevent abuse or the disposition of assets. The firm will determine how to initiate a divorce and if so, whether temporary orders need to be obtained. These important decisions are based upon the unique circumstances of every case and made only after careful evaluation by an experienced attorney.
Division of Property
New Mexico is a community property state, meaning that the law requires that all community property be divided equally based upon the value of the assets being divided. Generally speaking, property brought into the marriage by either party is that party’s separate, non-marital property. Also, property received during the marriage as a gift or inheritance will be considered the receiving spouse’s separate property.
All property acquired during the marriage through marital effort will be deemed to be community, regardless of how it is titled. When property owned by one party prior to the marriage has increased in value, the increased amount is usually considered separate property, with a few exceptions.
What is community property and what is separate property can be the subject of dispute in a divorce and often requires detailed and complicated “tracing” efforts.
Many of the disputes that arise over the division of property are based on how the property value is determined, particularly if there is a professional practice or business involved. Expert witnesses may be required to assist in the valuation process.
You may wish to read more about the following areas that may be involved in a divorce matter: