FAQs on Alimony and Spousal Support During or After a Divorce Case in Albuquerque, New Mexico

WHAT IS ALIMONY AND SPOUSAL SUPPORT DURING OR AFTER ADIVORCE CASE IN ALBUQUERQUE, NEW MEXICO?

 

Do you have questions about Alimony and Spousal Support During or After a Divorce Case in Albuquerque, New Mexico?  Alimony and spousal support are two different terms that are used interchangeably in New Mexico.  Alimony is a payment that one spouse makes to the other during or after a divorce case.  Alimony is a continuation, or a substitute for the right to support that each spouse enjoys during the marriage. New Mexico is a “no fault state” and alimony is not intended to be a penalty against the payer.

WHAT DIFFERENT TYPES OF ALIMONY ARE AVAILABLE IN ALBUQUERQUE, NM?

 

Alimony comes in several different forms in Albuquerque, NM. Depending on the type of alimony that is awarded in your specific case, the payments may either be permanent, temporary or single sum. You may be ordered to pay, or granted to receive, any of the following forms of spousal support:

• Permanent alimony: If awarded, this type of alimony will generally last until one party passes away or until the receiving spouse gets remarried.
• Temporary alimony: This form of alimony is also known as “rehabilitative alimony” or “transitional alimony.”

Rehabilitative alimony provides the receiving spouse with education, training, work experience, or other forms of rehabilitation to increase the receiving spouse’s ability to support oneself.

• Transitional alimony is intended to supplement the income of the receiving spouse for a limited period of time, which is clearly stated in the court order.
• Single Sum: Also known as “lump sum” can either be a non-modifiable or modifiable.  An example of single sum would be “$6,000 paid at $500 per month for 12 months.”

The wording of alimony agreements are extremely important.  Words such as “lump sum,” “definite amount,” or “non-modifiable” are interpreted as a fixed amount that is non-modifiable.

DO I QUALIFY FOR ALIMONY AND SPOUSAL SUPPORT IN ALBUQUERQUE, NEW MEXICO?

 

Maybe. Either spouse in a divorce can request alimony from the other spouse.  In Albuquerque, New Mexico, the biggest factor that affects alimony is need.  The court balances one spouse’s need with the other spouse’s ability to pay.

If cases where both parties are self-supporting, the court may deny the request for alimony, even when there is a large discrepancy in income. New Mexico court have the power to handle significant difference in earnings by granting one spouse a greater portion of the marital property, such:

• Bank accounts;
• Retirement;
• Home equity;
• Cars, land, or other personal property.

WHAT FACTORS DO NEW MEXICO COURTS CONSIDER WHEN DETERMINING ALIMONY AND SPOUSAL SUPPORT IN ALBUQUERQUE, NM?

 

Albuquerque, NM judges consider the following factors when deciding if alimony is appropriate:

• Each spouse’s age and physical and emotional health;
• Each spouse’s means of support, earning capacity, and good faith efforts to maintain employment;
• Need for support;
• Length of marriage;
• Each spouse’s award of property;
• The type and nature of each spouses’ assets;
• Income produced by each spouse’s property; and
• Agreements that the spouses enter when considering divorce or separation.

NM Courts are not allowed to consider the following when determining if alimony is appropriate:

• Fault for the divorce;
• The level of support needed for a spouse to achieve an earning capacity comparable to the other spouse, or to support oneself in a style comparable to that enjoyed by the parties during the marriage. See Hertz v. Hertz, 99 N.M. 320.

 

CAN I CHANGE OR MODIFY MY ALIMONY IN NEW MEXICO?

 

Maybe.

Indefinite alimony ends upon death or remarriage.  Indefinite alimony can be modified based on a substantial change in circumstances.

Words such as “Lump sum,” “definite amount,” or “non-modifiable” demonstrate an intent for the alimony to be non-modifiable. Alimony may be modifiable if these words are not used in connection with alimony order.

Either party seeking to modify alimony must show evidence of changed circumstances affecting the recipient’s need and the supporting spouse’s ability to pay.  Need and ability to pay are the twin towers of alimony.

 

HOW LONG WILL I RECEIVE OR PAY ALIMONY AFTER MY DIVORCE IN  NEW MEXICO?

 

New Mexico does not have specific law regarding the length of alimony. However, New Mexico has guidelines that help judges determine the length of alimony.  The guidelines suggest:

• 0 to 5 years of marriage: Generally no alimony.
• 5 to 10 years of marriage: Generally only rehabilitative or transitional alimony. A rehabilitative or transitional plan usually establishes the duration of spousal support payments.
• 10 to 20 years of marriage: Generally 30% to 50% of the number of years of marriage.
• Marriages over 20 years:  Generally indefinite and the court reserves jurisdiction over the issue, unless the parties can agree to lump-sum, non-modifiable alimony.

Alimony in New Mexico is not based on clear laws and can be a slippery issue.  Alimony in New Mexico is largely based on “guidelines” that help to assist the assigned judge.  Similar to most family law issues, your judge will have immense power to decide the length and duration of alimony – based on the specific facts of your case.

The guidelines themselves support your judge’s immense power to decide alimony and state: “If parties cannot negotiate duration of spousal support based upon the facts of the case, they risk uncertainty in both amount and duration at trial.”  This is essentially the guidelines way of cautioning couples from litigating alimony, based on the uncertainty of the issue.

WHEN IS ALIMONY NOT APPROPRIATE IN ALBUQUERQUE, NEW MEXICO?

 

Alimony can potentially be awarded in any case, depending on the facts.  Similar to most family law cases, judges have immense power to determine if alimony is appropriate. Nevertheless, the guidelines suggest that alimony is not appropriate in the following situations:

• The paying spouse’s income from all sources is less than $20,000 annually;
• In marriages less than five years absent exceptional circumstances;
• In marriages of less than ten years where both parties are self-supporting with approximately equal career opportunities;
• When the proposed Recipient is cohabiting with someone other than the paying spouse;
• When the parties’ incomes consist of social security and pension income only and their incomes are approximately equal;
• When an alimony award would be considered “Double-Dipping.” For instance when the same asset is considered in both the property distribution and support obligation.

It is important to note that Albuquerque, New Mexico judges have “broad discretion” to determine the proper amount and length of alimony. This means that your judge will have immense power to set the amount and length of alimony – and it will be extremely difficult to successfully overturn that decision through appeal.

WHAT IS PERMANENT ALIMONY?  WHEN DO JUDGES ORDER PERMANENT ALIMONY AND SPOUSAL SUPPORT IN ALBUQUERQUE, NM?

 

Permanent alimony continues until the death of the paying spouse, the death of the recipient, or the remarriage of the recipient. In some cases it can continue after the remarriage of the recipient, depending on wording in the agreement.

Albuquerque, NM judges generally award permanent (indefinite) alimony with marriages that are over 20 years.  Albuquerque, NM judges have immense power to determine the amount and length of alimony.  Even the New Mexico guidelines caution parties that they risk uncertainty in the amount and length of alimony by placing the issue of alimony in a judge’s hands.

CAN MEN RECEIVE ALIMONY AND SPOUSAL SUPPORT IN ALBUQUERQUE, NEW MEXICO?

 

Absolutely. Alimony payments can be made to either the husband or wife.  New Mexico statute and case law does not create any preference or exclusions that are based on gender.

 

WHAT EVIDENCE CAN I USE IN TRIAL TO SUPPORT MY CLAIM FOR ALIMONY?

 

Evidence to support one’s claim for alimony may include:

• Each party’s reasonable budget;
• Employment information (job availability, salary information, efforts to obtain employment);
• Past actual earnings (social security statements, tax returns),
• The couple’s history and lifestyle;
• Relevant health/medical information;
• Testimony regarding these relevant issues.

 

HOW CAN I PROTECT AGAINST ALIMONY PAYMENTS ENDING WITH THE PAYING SPOUSE’S DEATH OR DISABILITY?

 

It is a good practice to request that your spouse carry a life insurance policy that lists you as the beneficiary.  Life insurance can be used to secure payments of alimony and ensures that if the paying spouse dies you will not have to suffer the financial consequences of losing alimony.

CAN A PRENUPTIAL AGREEMENT PREVENT ALIMONY AND SPOUSAL SUPPORT IN ALBUQUERQUE, NEW MEXICO?

 

No.   A premarital agreement may not adversely affect the right of a child or spouse to support in Albuquerque, New Mexico. See NMSA 40-3A-4(B).

HOW IS ALIMONY TAXED IN NEW MEXICO?

 

Before 2019, alimony, unlike child support, was considered the recipient’s income and subject to income tax.  Likewise, before 2019 the paying spouse was entitled to a tax deduction for any payments made.

Alimony that is paid or received under an order or agreement in place before 2019 is still entitled to a tax deduction.  Nevertheless, alimony that is ordered or agreed upon in 2019 or after is no longer taxable or tax deductible for either spouse.

HOW CAN I ENFORCE ALIMONY IN NEW MEXICO?

 

Have you been awarded alimony and your former spouse is refusing to follow the order?  In New Mexico alimony payments become vested as they become due and cannot be modified.

If your ex has failed to provide court ordered alimony, you can file a motion to enforce or motion for order to show cause.

In New Mexico, the current statute of limitations to collect on accrued and past due alimony payments is 14 years.  Each payment is vested and accrues on the due date, so you have 14 years from the date that each alimony payment is due to file the appropriate motion to enforce.

 

(505) SANCHEZ IS HERE TO ANSWER ALL OF YOUR QUESTIONS ABOUT ALIMONY AND SPOUSAL SUPPORT DURING OR AFTER A DIVORCE CASE IN ALBUQUERQUE, NEW MEXICO

 

Do you still have questions about alimony and spousal support during or after a divorce case in Albuquerque, New Mexico?  Cases involving alimony and spousal support in Albuquerque, New Mexico often require one of the best family law lawyers in New Mexico.  Matthew Legan Sanchez is a New Mexico alimony attorney that handles alimony and spousal support in Albuquerque.  Call (505) SANCHEZ for any questions about alimony or spousal support in New Mexico.