Legal Separation: An Overview
In the state of New Mexico, legal separation is not a formalized or well-defined process. Instead, it is simply the time that two people have lived apart prior to filing for divorce. In general, couples who plan on divorcing in the near future will legally separate at some point, just to ensure that they remain apart long enough to qualify for divorce in the state.
Any time that a couple is living apart and not cohabitating, they can be considered legally separated in New Mexico. A couple does not have to take any special steps to become legally separated, and there are no legal documents that must be filed with the state to indicate that the couple is living apart. As a result, the only separation that matters in New Mexico is physical separation.
Because a legal separation is not formally defined in New Mexico, some couples still choose to obtain separation agreements with their partner in an effort to become formally or legally separated. A legal separation agreement is basically a written agreement that outlines any terms that the couple must meet during the remainder of the separation. A separation agreement can include any number of issues , including parenting time, decision-making responsibilities, child support and financial support agreements.
The courts typically do not regard separation agreements as necessary or beneficial, since New Mexico focuses on obtaining legal separation through physical separation. For similar reasons, there are also no special laws or procedures that apply to the separation of unmarried couples.
Why Do Couples Choose Separation Instead of Divorce in New Mexico?
Those considering separation as an alternative to divorce should keep in mind that the separation process is not seen by many as beneficial. The primary reasons that couples consider separation instead of divorce include the following:
If you and your partner have decided to separate for one of these reasons, it is important to keep in mind that the couple will still need to go through the divorce process at some point.
How to Get Legally Separated
The process of separating legally in New Mexico involves several key steps that are necessary to ensure that all assets, debts, and custody issues are clearly defined. For most people, the separation process in New Mexico is significantly easier than the divorce process. There are far fewer requirements for filing for legal separation than for a divorce.
1. Forms
The forms that need to be filed in New Mexico for legal separation vary depending on your particular situation. For instance, if you have children with your spouse, that form will be different than if you do not. The forms required for a legal separation may include:
· A petition for separation
· A certificate of service
· An affidavit
· A marital settlement agreement
2. Filing Fees
In general, the filing fees for legal separation in New Mexico are roughly the same as filing fees for a divorce in New Mexico. The fees in New Mexico for a divorce typically range from $220 to $300. As the fees are always changing, it is important to check with your district court and confirm the current fees with them.
3. Timeline
Having a basic understanding of the timeline for filing for legal separation in New Mexico can save you from running into unnecessary scheduling problems later on. In New Mexico, the timeline for filing for legal separation in New Mexico is relatively short. The moment you file for separation in New Mexico, the court will schedule a hearing. That hearing is typically set within ten days (10) of the date that your separation was filed. If there are children involved, the petition must be filed at least 30 days before the hearing date.
If you have questions about the timeline for separation in New Mexico or the process in general, it is highly recommended for you to speak with a qualified family law attorney.
Key Legal Separation Requirements
A Legal Separation in New Mexico is a settlement between two legally married individuals who have stopped living together as a married couple but are not yet divorced. A legal separation does not impact the property or debt division process the same way spouse’s going through a divorce would experience. When couples are separated, however, one person can still be responsible for the actions of the other. For instance, if an engaged couple rents an apartment, one person signs the lease even though the other person will live there, both people are usually responsible for the entire rent due each month. The same logic applies to spouses. When married people separate and one signs a contract for home repair work, both spouses may be held responsible for payment should the repair person take legal action.
To validate a legal separation in New Mexico, the criteria include:
New Mexico Law Does Not Require Legal Separation Under New Mexico law, a legal separation is not a mandatory requirement prior to getting a divorce. In other words, going through a formal separation process prior to a divorce proceeding is not necessary. Although court approval is not a requirement, it is possible to petition the court for a legal separation.
New Mexico Residency Requirement In order to file for separation or divorce, there must be a residency requirement established. The following residency requirements for New Mexico are established per NMSA 40-4-5. Full-time residents of the state of New Mexico need to wait six months after establishing domicile in the state to file for a legal separation or divorce. In short, only people who have continuously and actually resided in New Mexico for six months will qualify. People previously domiciled in New Mexico may qualify for a divorce after living outside of New Mexico for one year after leaving the state. In order to establish the residency requirement, the applicant must swear to their location in front of a judge or magistrate.
Documentation Required by the Court Although it is not a mandatory requirement to obtain a legal separation, should the court approve the separation, it will require documentation in the form of an approved petition for dissolution of marriage. Additionally, the submitted petition must include an agreement in writing that details the terms of the separation (clause 40-4-7 NMSA 1978). There are no rules in New Mexico law that clarify the exact content of the separation agreement; it can contain anything the couple agrees on, including items, such as child support, visitation, child custody, property and debts.
Effects of Separation on Finances and Property
In New Mexico, a couple is considered to be legally separated if, with the intent to live apart, they have physically moved into separate residences for at least 60 days. If you or your spouse file a petition for divorce, a court can issue a temporary order granting spousal support and distributing any property (or debt) between the parties until a final divorce decree is issued. Many decisions regarding marriage and divorce can have an impact on the debtor/creditor relationship. When looking at the debts and assets of each spouse, New Mexico does not divide property according to the date of its acquisition. Although New Mexico is a "community property" state, if a spouse inherits property, that property is exempt from division as marital property. This doesn’t mean that the person who inherited property during the marriage doesn’t have to split their estate in half upon divorce. It just means that spouse does not owe half the value of property to his or her spouse upon divorce if the inherited property was kept separate – that is, not commingled with marital property.
In deciding how to divide property, including real estate, furnishings, motor vehicles, bank accounts, debt obligations and income, the Court will look to the following factors:
The Court will weigh each factor listed above to make a property division decision. In New Mexico, a spouse is obligated to act in good faith when dealing with property owned by both spouses. It is rare for a Court to even consider an equal division of property. The Court will use its discretion as to how to divide property but will order an equal division only if such an order is warranted by the factors listed above. Once a divorce decree is issued, the parties may not re-litigate the issues of child custody, support, alimony and property division; the final decree is usually binding. However, a spouse can ask the divorce court to temporarily suspend payments during a time of financial hardship or other unforeseen event. If a spouse files a Chapter 7 or Chapter 13 bankruptcy, the bankruptcy will supersede the divorce decree and affect the repayment of debts. Chapter 7 bankruptcy involves liquidation of non-exempt assets while Chapter 13 involves the restructuring of debts.
Custody and Support During a Separation
When separating from a spouse in New Mexico, it is critical to address any child custody and support requirements. Separation can impact both legal and physical child custody arrangements and, along with the temporary allocation of income and child support, should be considered as part of any legal separation agreement.
New Mexico law recognizes the difference between "legal" and "physical" custody. Physical custody refers to where the child resides, while legal custody refers to the authority granted to one or both parents to make important decisions for the child like religious education, education, and health care. Parents are encouraged to set reasonable expectations related to to which parent gets physical custody if they legally separate or divorce, but they are not required to do so – New Mexico law requires the court to make this decision after a legal separation or divorce . A family court considers a number of factors when deciding child custody cases in New Mexico, including:
Once the decision has been made, it is possible for the custodial parent to seek a modification if custody arrangements have changed considerably since the separation agreement or divorce. As for the conditions under which child custody can be modified, many factors are considered, including inter alia:
After a legal separation or divorce, the court will determine the appropriate arrangement for payment of existing child support. Parents may use a variety of financial models for how child support should be paid:
The formula from the New Mexico Child Support Guidelines (on which courts base child support calculations) is as follows:
For all the financial details to be accurate, parents may be required to provide the court with relevant documentation for consideration. This may include tax returns, pay stubs, and records of approved expenses.
Changing or Ending a Separation Agreement
In New Mexico, as with most states, a couple may agree to separate rather than divorce. More importantly, they may agree to a separation under the procedure and terms set forth in a legal separation agreement. A legal separation agreement is a contract between the parties that will ordinarily address such issues as divorce, debt payment, custody, child support, alimony, etc. It is not required by any means, but it is frequently used to allow time to pass for one party or the other to reconcile the marriage, or for financial, emotional, child-related or career purposes.
However, a legal separation agreement is not necessarily forever. Like any contract, the terms of the agreement may be modified to meet unforeseen circumstances. In fact, the term of the legal separation is indefinite under statutory law unless the parties state the contrary in the agreement itself. Under New Mexico law, a legal separation agreement may be modified by a modification petition whether the separation is consensual or through an intervention by the state. The petition must be submitted to the court for the division of property, debts, custody, child support, alimony, or other related concerns.
Moreover, a legal separation agreement remains in effect until it is terminated by an agreement of the parties, an intervening divorce, or the death of the parties. Either party to the agreement may petition for the process of converting the legal separation into an absolute, prorated divorce under specific portions of New Mexico law.
Common Issues and Considerations
Legal separation often proves to be a stress test for relationships because couples must confront a variety of issues that can be difficult to navigate. Some of these include the legal aspects of separation themselves but others are emotional or even practical in nature. Below you’ll find some common challenges couples face during legal separation in New Mexico.
Just as money can’t buy love, it also can’t buy respect or empathy. You and your spouse have once been in a loving and supportive relationship, but now you might find them to be argumentative, spiteful, or even unwilling to negotiate the terms of your legal separation. Work with a lawyer who can help ensure your rights and best interests are represented regardless of the attitudes of those involved in your separation case.
Couples often have difficulty approaching their separation agreements with clear eyes. Many have strong emotions about their marital assets , their children, and their new, uncertain future. Since these emotions can cloud decision-making and confrontation can easily escalate, consider hiring a family therapist or counselor for you and your spouse to improve communication and reduce the chances of miscommunication in the separation process.
Once an agreement is finalized, it may be difficult to adjust to your new lifestyle. You might not receive child support payments on schedule or your ex might violate child custody agreements. A lawyer with extensive experience in legal separation will know how to approach these issues in an efficient and cost-effective manner.
The legal separation process is fraught with difficulty. With help from an experienced divorce and separation attorney in New Mexico, however, you can move forward with confidence.
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