Divorce is a sensitive and emotionally jarring time for most couples who are thinking about or going through it. When you are part of a LGBTQ+ couple considering divorce, you likely have questions about what to expect, including the common ones below.
Can I Get a Divorce in New Mexico?
Possibly, as long as you meet the two legal requirements to divorce in the state that apply to all couples. You must be legally married to your spouse, and you or your spouse must have been a New Mexico resident for at least six months before you ask for a divorce in the state. If you have any concerns about meeting both of those requirements, speak to an experienced divorce attorney in New Mexico for more information.
Is the Process for LGBTQ+ Divorce in New Mexico Different?
In New Mexico, the process for LGBTQ+ couples is the same as that for heterosexual couples. You will follow the same legal procedures and file the same court papers. Spousal support may apply, and if there are children involved, custody matters and child support may be in play, too.
Keep in mind that, since LGBTQ+ marriages were only legalized in the state in 2013, some couples have been together for a longer period before they legally married. The length of the marriage will be from the legal marriage date and not the actual duration of the relationship when it comes to things like spousal support calculation and community property division. There are arguments that can be made in certain circumstances that the prior years of the relationship “count” towards some assets and/or spousal support. It’s important to speak to an attorney who is aware of those arguments and how they might affect your divorce.
What are the Grounds for a LGBTQ+ Divorce in New Mexico?
New Mexico is considered a “no-fault” state. So, either spouse can file for divorce without having the consent of the other spouse, and you do not need to claim fault in the divorce filing. Many people simply use “irreconcilable differences,” which generally means the marriage is simply no longer working due to incompatibility. While it’s understandable that you may want to prove your spouse is at fault for the breakdown of the marriage, this generally will not help you in any way in the divorce.
How are Assets and Debts Handled in a LGBTQ+ Divorce in New Mexico?
The laws in New Mexico regarding debts and assets are the same for all divorces, including LGBTQ+ divorce. New Mexico is what is known as a “community property” state, meaning all debts and assets of the marriage are split equally in a divorce. However, debts and assets outside of the marriage are considered separate property and not a part of the marriage pot. This may include assets and debts acquired before the marriage and even assets acquired during the marriage via inheritance by one spouse. It is important to note that sometimes, assets or even debts that started out as separate property can become part of the marital property depending on how they were handled.
Your attorney will be able to help you determine which assets and debts are marital property and therefore subject to division in divorce and which ones are considered separate property. Make sure you create a full list of all of your assets and debts and gather the paperwork related to those assets and debts so you can pass that information to your attorney.
Divorces can get complex quickly, and even proceedings that start out amicable can suddenly turn contentious. Work with an attorney as soon as you are seriously considering divorce so you have legal guidance to rely on and advice available to you for the entire process.