This summary regards the New Mexico uncontested divorce filing process, which can also be done inexpensively by an uncontested divorce attorney. While this is not meant to be a step-by-step guide, it may prove helpful in a general sense. Each divorce is unique and requires individual attention, but this overview should help people go in the right direction.
Proper court for filing a New Mexico Divorce Petition
Divorces in the state of New Mexico are filed in Judicial District Courts, which have the authority to make local rules applicable to each court. The Petitioner is the name of the spouse filing the action, while the Respondent is the partner that is responding. At least one of the spouses must be a resident of the state of New Mexico for 6 months prior to filing for the divorce, but the filing can occur in any county, though it make the most sense to file where at least one of the parties resides.
Each divorce proceeding comes with a 30-day waiting period after forms are served to the Respondent. If there are no children in the marriage, the waiting period can be waived.
Grounds for Divorce
In the state of New Mexico, the No-Fault divorce is available on the grounds of incompatibility between two individuals. As defined by law, incompatibility means “…discord and conflicts of personalities such that the legitimate ends of the marriage have been destroyed [thereby] preventing any reasonable expectation of reconciliation.” There are three other grounds for divorce, including adultery, abandonment, and cruel and inhuman treatment but each of these is rarely used anymore..
For divorce in New Mexico, incompatibility is often the most common reason for divorce proceedings. A divorce action is a five-step process that includes the following:
- Selection of proper pleadings
- Preparation of pleadings using forms
- Filing of pleadings with clerk in district court
- Service of process
- Court hearing
Service of the New Mexico Divorce Proceeding
The Service of Process forms appropriate for each individual will vary and depend on how the Respondent is notified about the action. If the couple agrees to the action, the parties can waive service and file stipulated documents. Service by the Petitioner requires the “Appearance, Waiver, and Consent” form. If service is completed through mail, Summons and a Notice of Summons is required to be served. If service is by deputy sheriff, then different forms will be required.
A divorce proceeding may begin when a Petitioner makes the filing and serves it upon Respondent. Each Respondent is to be given a Petition and when it is applicable, the child support worksheet (either A or B) or joint parenting plan.
However, if the service is from the Petitioner side, then the Respondent can be given an Appearance, Waiver and Consent form to sign in order to make the action easier to move through the court system.
When the service comes by mail, the Respondent is responsible for responding to the Summons in addition to all of the above indicated forms. This gives an indication of all rights and the Notice and Recipient of Summons Form and Affidavit of Service Form confirm the delivery. When a Deputy Sheriff or Process Server performs the service, the Respondent has the responsibility to also fill out the Summons and Return in addition to all above indicated pleadings, which acts as a receipt of the process.
As soon as the Respondent has been served, the waiting period begins, which cannot be waived where minor children are involved. Service by mail gives the Respondent 23 days to complete the Notice and Receipt of Service form or the period expires 33 days after mailing. However, if the service is performed by Deputy Sheriff or Process Server, waiting periods are 30 days without counting the day of service itself.
When Petitioners offer the service and the Respondent signs the Appearance, Waiver and Consent form, the Petitioner also prepares a Waiver of Waiting Period Form. When the Respondent signs this, the Petitioner can request a brief hearing, answer a few questions, and have the judge sign a divorce decree.
When an individual other than the Petitioner gives service, the appropriate waiting period is all that stands between the Petitioner and asking for a default judgment. If the Respondent does not offer a response in this waiting period, a default will be carried out. The Petitioner will need to file an Affidavit for Entry of Default Form and the Entry of Default Form. In addition to these forms, the Petitioner must fill out the following forms:
- Return form and Summons Form if it has not been previously filed
- Notice of Summons if it has not been previously filed
- Affidavit of Service if it has not been previously filed
- Certificate as the State of the Record and Non-Appearance
- Decree of Dissolution of Marriage
In the divorce proceedings, if a spouse cannot be found, the Petitioner must make every effort to locate the Respondent. Failing these efforts, the Petitioner can use the Service by publication option. With this, a Petitioner publishes a notice in the newspaper informing the Respondent of any upcoming action, which can be done once a week for four consecutive weeks.
For this to be done, a Petitioner must file an affidavit swearing to the accuracy of his/her diligent efforts to locate the missing spouse. Only then will the publications occur, at which point the Petitioner must file the Affidavit of Publication with the court. This final action can move as a default divorce in certain situations.
Varying Situations will require additional Pleadings
The appropriate forms for the divorce are dependent upon a few different factors. First, there are forms for marriages that have minor children or those without minor children. Pro Se (self-represented parties) have forms available to them through New Mexico Rules Annotated (NMRA) under Chapter 4A; this chapter includes various domestic relations forms including forms for the petition, the martial settlement agreement, and the parenting plan and child support obligation worksheets mentioned herein.
If there are minor children involved in the action, the Petitioner must select the proper forms which will include a parenting plan and child support obligation.
There may be other additional pleadings that are necessary depending upon the circumstances of the separating parties. These pleadings are:
- Wife’s Consent to Restore Former Name – which is used when the wife requests it.
- Waver of Waiting Period – used when Respondent signs an Appearance, Waiver, and Consent.
- Affidavit for entry of Default – this is used when service is made by another party besides the Petitioner.
- Entry of Default – this is used in conjunction with the Affidavit for Entry of Default.
- Certificate as the State of the Record and Non-Appearance – used specifically to certify that a Respondent did not answer a Petition.
While child support is a main concern, it is dependent upon any arrangements made for custody with the Monthly Child Support Worksheet A used for sole custody or Monthly Child Support Worksheet B used for joint custody situations. In addition, there is a Joint Custody Parenting Plan, which describes all relevant facts of any arrangement between joint custody parents. Furthermore, the Affidavit Concerning Child Custody is a request for relevant information about minor children involved.
Regardless of the particular facts of your contemplated divorce, local divorce and family law attorneys are an invaluable resource to answer any questions you might have, assist you in navigating the various forms and procedures described above, and generally insure that your rights and interests are protected throughout the process. For help with you uncontested divorce in New Mexico, be sure to contact our office today.