Is The Divorce Process is Different For LGBT and Same-Sex Divorce in Albuquerque, New Mexico?

 

LGBT DIVORCE LAWYER IN ALBUQUERQUE, NEW MEXICO

Albuquerque, New Mexico began recognizing same-sex marriages on December 19, 2013.  The right to marriage also carries the right to divorce.  Here are the top questions that I encounter relating to LGBT and same-sex divorce in Albuquerque, New Mexico.

IS THE DIVORCE PROCESS IN NEW MEXICO DIFFERENT FOR LGBT COUPLES THAN FOR SAME-SEX?

No.  The divorce process for LGBT couples is the same as for same-sex couples in New Mexico.  You will follow the same legal procedure and the same court documents.

The division of marital property is the same for same-sex couples in New Mexico.  This means that same-sex couples are entitled to the same division of community property and to receive spousal support/alimony.

When children are involved, same-sex divorces will also involve child custody, parental visitation and support for the children.

Because same-sex marriages was legalized in New Mexico on 2013, some couples may have been together for a long period before they were actually married.  In these instances, because New Mexico does not recognize common law marriages, the community property and alimony will only be based on the actual length of the marriage – not the length of the relationship.

CAN I GET DIVORCED IN NEW MEXICO?

Maybe.  Although same-sex marriage and divorce is legal in New Mexico, there are certain restrictions about who can request a divorce in New Mexico.  You will need to meet two requirements to be divorce in New Mexico:

• You must be legally married;
• You must meet New Mexico’s residency requirement:
  • You or your spouse must be a resident of New Mexico for six months prior to requesting a divorce in New Mexico.

These legal requirements are the same for anyone that is seeking a divorce in New Mexico.

CAN I GET DIVORCE IN NEW MEXICO IF I WAS MARRIED IN ANOTHER STATE OR COUNTRY?

Assuming that the marriage was valid, you may request a divorce in New Mexico if you can meet the requirements addressed above (i.e. valid marriage, and residency requirement).  Regardless of where you were married, you can get a divorce in New Mexico if you or your spouse meets New Mexico’s six month residency requirement.

HOW LONG DO I HAVE TO LIVE IN NEW MEXICO TO FILE FOR DIVORCE?

You can file for a divorce in New Mexico if you or your spouse has lived in New Mexico for six months.

IS THERE A WAITING PERIOD TO REMARRY IN ALBUQUERQUE, NEW MEXICO?

No.  Unlike some other states, Albuquerque, New Mexico has no restrictions on the length of time that you must wait to get married after your divorce is finalized.  In Albuquerque, New Mexico, you may remarry immediately after your divorce is finalized by a Final Decree of Dissolution of Marriage.

WHAT ARE THE VALID GROUNDS FOR SAME-SEX DIVORCE IN NEW MEXICO

New Mexico is a no-fault state.  This means that either spouse may request a divorce, without the other spouse’s approval.  The most common reason for a divorce in New Mexico is “irreconcilable differences,” which basically means that you are not compatible.

In New Mexico, a spouse can claim fault in the Petition for Divorce, but it is not required.

HOW IS THE LENGTH OF MARRIAGE DETERMINED AND HOW DOES THIS IMPACT THE DIVORCE?

In New Mexico, the length of your marriage is an important factor for two reasons:

• The date of marriage creates a distinction between “separate” and community” property; or
• The date of marriage can impact the length of spousal support/alimony.

CHILD CUSTODY AND SAME-SEX DIVORCE IN ALBUQUERQUE, NEW MEXICO

Custody laws are the same for same-sex couples in New Mexico.

If one of the partners did not legally adopt the other’s biological child, the court may still award time-sharing by showing a “psychological bond” between parent and child.  In Chatterjee v. King, the New Mexico Supreme Court granted the non-adoptive parent of a same-sex joint legal custody, reasoning as follows:

• The ability to hold a child out as one’s own by providing emotional and financial support is based on conduct, not gender, and it is therefore practicable for a woman as well as for a man.
• New Mexico’s public policy is to promote the best interests of the child and that end is usually best served by facilitating that the child has two loving parents.

See Chatterjee v. King, 2012-NMSC-019.

I DIDN’T ADOPT MY PARTNER’S CHILD, BUT WE LIVED TOGETHER FOR YEARS AND I SUPPORTED HER EMOTIONALLY AND FINANCIALLY.  DO I HAVE ANY RIGHTS?

Possibly.  In New Mexico, under Chatterjee v. King, a spouse steps into a parent’s shoes by providing a child with emotional and financial support.  Under King, you have the ability to assert rights, but in doing so, you open the possibility to be financially responsible for child support.

Are you deeply bonded with your ex-partner’s child?  Did you provide the child with financially and emotionally support during your relationship?  If so, then you may be viewed as the child’s psychological parent and can receive some rights such as parenting time with the child.

I AM IN A SAME-SEX MARRIAGE AND I WANT TO HAVE PARENTING TIME WITH MY CHILD.  ARE NEW MEXICO LAWS DIFFERENT FOR LGBT PARENTS?

No.   New Mexico courts use gender-neutral laws.   New Mexico courts are interested in the child’s best interests – not the parents’ gender.  New Mexico courts are always guided by a child’s best interests when determining the appropriate time-sharing between parents. The court’s decision is never based on the parents’ sexual orientation, race, gender, economic status, or education level.

AM I REQUIRED TO PAY CHILD SUPPORT IF MY PARTNER AND I ADOPTED A CHILD, BUT ARE NOW SEPARATED OR DIVORCED? 

Yes.  New Mexico laws surrounding child custody, parenting time, and child support are gender neutral.  You will be legally required to support the child, based on the adoption.  In New Mexico, child support is calculated based on the NM Child Support Guidelines.

HOW ARE ASSETS AND DEBTS DIVIDED IN SAME-SEX DIVORCES IN NEW MEXICO?

New Mexico’s laws regarding assets and debts are the same for all divorces.  New Mexico is a community property state which means that most assets/debts accumulated during the marriage will be split 50-50 upon divorce.  The assets/debts acquired before the marriage are separate property.

NEW MEXICO SPOUSAL SUPPORT/ALIMONY IN SAME-SEX DIVORCES

In New Mexico, spousal support/alimony is the same for same-sex couples and heterosexual couples.  Spousal support/alimony is based on a number of factors.  Click here for more information on spousal support/alimony in New Mexico.

 

(505) SANCHEZ IS HERE TO ANSWER YOUR QUESTIONS ABOUT LGBT AND SAME-SEX DIVORCE IN ALBUQUERQUE, NEW MEXICO

Do you still have questions about Is The Divorce Process is Different For LGBT and Same-Sex Divorce in Albuquerque, New Mexico?  Child custody and divorce in Albuquerque often requires the experienced hand and knowledge that comes with years of courtroom practice.  Matthew Legan Sanchez has the experience needed to handle your unique case.  Sanchez can be reached by calling (505) SANCHEZ.