Divorce can be mentally and emotionally draining. For some, preparing and filing for divorce feels like a chess match. This feeling often causes both sides to balance and consider the best ways to prepare for the coming divorce. While considering the approaching legal marital separation, both spouses may wonder, “Does it matter who files for divorce first in New Mexico?”
Let’s uncover the pros and cons of filing for divorce first in New Mexico.
To begin, the spouse that files for Divorce first (“Petitioner”) does not receive special treatment. For instance, New Mexico law doesn’t change because one side files first. This means that filing first doesn’t impact the divorce’s facts or give one side leverage.
Moreover, New Mexico law doesn’t benefit the spouse that files for Divorce first. You see, New Mexico is a community property state. This means that most assets and debts that are built during the marriage are split evenly upon marital separation. Consequently, filing first does not impact how community assets and debts are divided.
Additionally, New Mexico is also a spousal support/alimony state. In New Mexico, alimony is based on several factors. Most importantly, alimony is based on the marriage’s length and each spouse’s need and ability to pay. With that said, filing first for marital separation does not improve or hurt one’s alimony claim.
When children are involved, a Parenting Plan must be completed and filed. A Parenting Plan resolves child legal custody, parental visitation, and child support. Child full legal custody and parental visitation are always based on a child’s best interests. Consequently, filing first usually does not improve or hurt one’s child full custody and parental visitation case.
Finally, filing first does not impact how much child support is paid. Instead, child support is based on the New Mexico child support guidelines. According to these guidelines, the biggest factors that impact child support are:
Filing first for divorce does not result in preferential treatment under New Mexico law. With that said, there are some strategic benefits with filing first for divorce in New Mexico.
Like most elements of life, there are costs and benefits of filing first for divorce. Here are the key benefits.
Being mentally and financially prepared for marital separation is a key benefit to filing first. Psychologically, filing first gives one side the feeling of acting. At times, acting is empowering. For instance, it is more empowering to actively file than inactively sitting around and wondering what will happen.
Furthermore, filing first enables one side to draw their own line in the sand. In doing so, this side can speak with an attorney and be prepared. This preparation involves a complete understanding of New Mexico’s divorce laws. Also, preparation enables one to understand how NM law impacts the unique divorce.
Financially, the ability to prepare includes the chance to monitor your finances. Unfortunately, sometimes a spouse is blind-sided by a marital separation. When this happens, the unsuspecting spouse often doesn’t have the opportunity to properly monitor accounts. Failing to actively monitor accounts often leads to shady divorce moves. These shady moves include:
Any of these shady moves could negatively affect the divorce. Nevertheless, being mentally and financially prepared enables one to prevent questionable behavior.
Filing first also presents the ability to establish the filing date. A temporary domestic order (“TDO”) is usually filed with a divorce. This TDO freezes the status quo and prevents specific changes/actions. For instance, the TDO prevents both spouses from dropping the other spouse from an account. Additionally, the TDO prevents removing a spouse from insurance – or making other major changes.
Filing first also presents the opportunity to request emergency relief. This emergency relief often includes the request for a temporary order. For instance, the filing party can request interim support, interim visitation, or exclusive use of the martial home.
Moving forward, filing gives the filing party the chance to ensure that the divorce moves forward. Unlike criminal cases, divorce cases are not self-propelling. This means that either side must move the case forward. Failing to properly move the divorce forwards can result in the divorce being dismissed for lack of movement.
When a divorce trial is necessary, filing first enables the Petitioner to speak first. In doing so, the Petitioner has the chance to make a good impression. However, this can go either way – because the Respondent has chance to speak last. In other words, at times having the last word is a benefit.
Laws vary from state to state. For instance, Texas has different alimony laws than New Mexico. Moreover, some states are not community property divorce states. For this reason, filing for divorce in New Mexico may benefit one spouse more than the other.
Filing first is important when both sides live in different states. Filing first is important because it often leads to the divorce moving forward in the initial state. However, filing first doesn’t have a big impact when both spouses live in the same state.
Like most elements of life – there are pros and cons to filing first. In some cases, filing first hurts more than it helps.
Some divorces can be resolved civilly without court interaction. With that said, surprising your spouse by filing first could turn a potentially uncontested divorce into a legal battle. At times, spouse’s that are blind-sided by a divorce feel the need to strike back. When this happens the chance for an uncontested divorce usually disappears.
Filing first shows your demands. In doing so, filing first gives the other side a chance to confer and prepare a counterattack. With that said, most strong cases are strong regardless of whom files first. Depending on the facts, usually one side is stronger than the other regarding:
With these key issues, filing first has little impact on each issue’s outcome.
The person requesting the divorce often pays the following fees:
It is also important to consider the social, cultural, or religious disadvantages of filing first. Some groups perceive the Petitioner as being the person that desired the divorce. As such, a perception may arise that the Petitioner caused the divorce. This perception may be especially concerning when a spouse is religious. For cultural or religious reasons, there may be disadvantages of filing first. For instance, the person requesting the divorce may be perceived as the spouse that caused or desired the divorce. In turn, this perception may cause a stigma that negatively impacts the spouse’s social, cultural, or religious standing.
Are you looking for the best divorce lawyer/attorney for men/women? If so, have you wondered, “Does it matter who files for divorce first in New Mexico?”
Otherwise, are searching for a divorce lawyer/attorney in Albuquerque? If so, look no further. Our top Albuquerque divorce lawyers have the trial experience needed to handle your divorce.
For over a decade, Sanchez has handled uncontested divorces all across New Mexico, including: Albuquerque, Santa Fe, Taos, Rio Rancho, Los Lunas/Belen, and Gallup/Grants. Also, Sanchez has handled contested divorces across New Mexico, including: Albuquerque, Santa Fe, Socorro/Estancia, Rio Rancho, Los Lunas/Belen, and Gallup/Grants.
Talk to a seasoned and successful divorce attorney that knows what they are talking about. Talk to (505) SANCHEZ.
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