5 Common Questions LGBTQ+ Couples Facing Divorce Ask

Divorce is often an emotional and confusing time for a couple, and these feelings can be heightened for LGBTQ+ couples due to understandable concerns over how laws will apply and how they will be treated by the court. An experienced LGBTQ+ divorce attorney can help answer your questions, clear up any confusion and address concerns you may have. In the meantime, learn the answers to some very common questions LGBTQ+ couples often have about divorce in New Mexico.

Are the Procedures of Divorce the Same for LGBTQ+ Couples?

While you may have some different considerations in your case than heterosexual couples, the legal procedures you will follow and the court documents you will need are the same. Your attorney will help you with all the procedural aspects of your case. Keep in mind that you will still need to meet two requirements to get divorced in New Mexico, which all married couples seeking a divorce must also meet: you and your spouse have to be legally married, and either you or your spouse must be a legal resident of New Mexico for at least six months before requesting the divorce. This naturally means you must be legally married to your partner in order to get a divorce. New Mexico does not have domestic partnership laws, meaning that a long and serious relationship is not treated the same as a bona fide marriage. This matter can be complicated and it is best to speak to an attorney in order to determine what your rights will be.

What Are the Valid Grounds for LGBTQ+ Divorces in New Mexico?

New Mexico is what is known as a “no-fault” divorce state. This means you or your spouse can file for the divorce, and you don’t need the other’s approval or consent. It additionally means the Court does not consider the reason for the divorce. Generally, the most commonly used reason for a divorce in this state is “irreconcilable differences,” or when a couple is simply no longer compatible.

How will Debts and Assets be Divided?

The laws regarding debt and asset division in a divorce are the same for all divorces in New Mexico. This state operates under a “community property” principle, meaning that many of the debts and assets acquired during the marriage will be evenly divided at divorce, while debts and assets acquired before the marriage remain the separate property of the spouse who had them originally.  It is important to keep in mind that some assets or debts that started off as separate property can become community property during the marriage.

For LGBTQ+ couples, this line can be more complicated than heterosexual couples where the right to marry was only recently granted, therefore many LGBTQ+ couples have been in committed relationship for a very long time but have only been married for a relatively short period of time. Whether assets obtained prior to the marriage can retain their separate status is a complicated issue that is best addressed by an attorney with experience in LGBTQ+ divorce. Make sure to document all of your assets and debts for your attorney so they can begin determining what is subject to the divorce and what is not. Even if you believe an asset or debt may be separate property, it’s vital you get all the information to your attorney so they can research the asset or debt and provide competent advice. 

Will I Have Parenting Time with the Children?

In New Mexico, parenting time laws are gender-neutral, however the process of becoming a parent to a child that is shared between an LGBTQ couple can be complicated. For instance, if the child was born during the marriage, there is a presumption of both partners’ parenthood. If the child was born prior to the marriage and/or only one partner is the “legal” parent, however, the situation may be a bit more complicated. Regardless, generally speaking, the best interests of the children guides the court’s decision in this area and not the genders of either parent. If you have a complex parenting situation or are concerned about your rights to any children in your marriage, be sure to discuss this with your attorney as soon as you can.