Military Divorce in Albuquerque, New Mexico FAQs

The Sanchez family has a long history of military service in Albuquerque, New Mexico.

My Great Grandfather served in World War I. My Grandfather served in World War II. My Father served in the Vietnam War.  My brother served in the Afghanistan War.

Here are the most common questions that I experience in relation to a military divorce:

CAN THE JAG OFFICE HANDLE MY MILITARY DIVORCE IN NEW MEXICO?

No.  Although the Judge Advocate General (JAG) office can provide general information, the JAG officers cannot represent you with your New Mexico divorce.  You will need to retain a private attorney to represent your interests in the New Mexico divorce.

WHERE CAN I FILE FOR MILITARY DIVORCE?

Military families can file for divorce in New Mexico when:

1.  The military member has been continuously stationed in New Mexico for six months;
2.  A military member’s spouse has lived in New Mexico for six consecutive months prior to filing; or
3.  The military member or spouse lived in NM for six months immediately before entering the military, is currently stationed outside of NM, but has the intention to return and live in NM.

A military member can file a divorce in New Mexico under any of the three scenarios above,  See NMSA 40-4-5.

MY SPOUSE IS ON ACTIVE DUTY AND IS IN ANOTHER COUNTRY.  CAN I FILE FOR MILITARY DIVORCE? 

Yes. You may, however, experience difficulties locating your spouse and properly serving the divorce documents.  Additionally, there is a possibility that the other state or country has laws that are different from New Mexico, in relation to properly serving the divorce documents.

DO I NEED TO WAIT TO FILE FOR MILITARY DIVORCE WHEN MY SPOUSE IS SERVING OVERSEAS?

No. You are not required to wait until your spouse returns from another country to file for divorce in New Mexico.  However, the long-distance can complicate the divorce process. The distance between you and your spouse could create difficulties serving your spouse with the necessary divorce papers.  In situations where your spouse refuses to accept service, you may have to file a motion to serve your spouse through a method that is reasonable calculated under all of the circumstances to inform your spouse about the divorce and the need to response.  This service may include certified letter, email, or publication through a local newspaper.

HOW DO I SERVE THE MILITARY DIVORCE PAPERS ON MY SPOUSE THAT IS IN THE MILITARY?

Under New Mexico law, your spouse is entitled to service/notice of the divorce and an opportunity to respond, under Rule 1-004.  The service process can become a bit trickier when your spouse is deployed in another state or country.  In this situation, your spouse is still entitled to service/notice of the divorce.  The rules on service, however, may vary depending on the state or country where your spouse is stationed.  If your spouse is in a foreign country, then service/notice of the divorce must meet the foreign country’s laws, which often fall under The Hague Convention, or international treaty.  Additionally, you will need to comply with military regulations for proper service/notice when your spouse is stationed on base.

HOW DOES THE SERVICE MEMBERS CIVIL RELIEF ACT AFFECT MY NEW MEXICO MILITARY DIVORCE?

The Civil Relief Act provides legal protections when your spouse’s military service affects your spouse’s ability to respond to the divorce being filed. These protections include a stay (i.e. pausing the divorce case), or a suspension of the divorce for 90 days. This delay is intended to provide the service member with additional time to respond to the divorce and to adequately prepare for trial.  The Relief Act also protects service members from a default divorce being entered.  The Relief Act, however, does not protect service members from sanctions or potential prosecution for failing to pay child support.

IS MY MILITARY SPOUSE’S PENSION CONSIDERED COMMUNITY PROPERTY IN NEW MEXICO?

Yes. Military retirement is considered community property in New Mexico. With that said, on the portion that was earned during the marriage is community property.  Any pension that was earned before or after the marriage is consider one’s separate property.  The portion of the pension that was earned during the marriage is community property and split 50-50.

With that said, you may encounter jurisdictional issues if the service member did not file the petition, or objects to New Mexico assuming jurisdiction over the divorce.

CAN I KEEP MILITARY HEALTH INSURANCE AFTER I AM DIVORCED FROM MY MILITARY SOUSE?

Maybe.  Whether or not you are able to keep the TRICARE insurance depends on the length of your marriage that overlapped with your spouse’s military service, and the length of your spouse’s service.  For instance, a 20/20/20 spouse (i.e. married for 20 years, with 20 years of service, and 20 years of overlap) can anticipate long term health coverage.  You may, however, receive temporary coverage, or no coverage, when the numbers in your specific formula are smaller than 20/20/20. Ultimately, the Defense Accounting and Finance Service will make the final determination regarding your eligibility to maintain TRICARE insurance after the divorce.

HOW DO I ENFORCE MY MILITARY SPOUSE’S CHILD SUPPORT AND/OR SPOUSAL SUPPORT OBLIGATION IN NEW MEXICO?

Is your military spouse refusing to make court ordered child support or spousal support payments?  If so, you should send a written complaint to your spouse’s commanding officer that requests the enforcement of court ordered, military support obligations.  The commander has several options to enforce the payment of ongoing support obligations:

• Forfeited pay;
• Reprimands;
• Pay deductions; or
• Criminal sanctions.

It’s important to note that your spouse’s commanding officer can only enforce the payment of ongoing support obligations – and cannot enforce the payment of past support that has not been paid (i.e. arrears).

When your ex refuses to follow the court’s support order, you can also file a Motion to Enforce or Motion for Order to Show Cause.

DOES MILITARY DIVORCE AFFECT CHILD CUSTODY ISSUES IN NEW MEXICO?

It can.  In situations where a service member is actively deployed in another country, the court may grant the parent that is caring for the children temporary custody.  This temporary custody, can then affect the “status quo” timesharing that can have long term effects on the “permanent” timesharing that is entered upon divorce.

New Mexico courts are ultimately guided by the child’s best interests, when determining the appropriate timesharing and custody.

HOW WILL BEING DEPLOYED AFFECT MY CUSTODY AND TIMESHARING IN NEW MEXICO?

Custody and timesharing cases are based on a number of different factors that guide New Mexico courts towards the child’s best interests.  New Mexico courts generally favor predictability and consistency in a child’s life.  Based on this preference, the deployment could create a scenario where one spouse is the child’s primary caregiver.  The deployment can also create a “status quo” of timesharing that often follows the custody case into the permanent Parenting Plan that outlines timesharing.

MILITARY MARRIAGE BENEFITS IN NEW MEXICO.  HOW IS CHILD SUPPORT CALCULATED BASED ON MILITARY PAY AND BENEFITS IN NEW MEXICO?

New Mexico has clear child support guidelines that determine one’s monthly child support obligation.  Child support in New Mexico is largely based upon timesharing and gross income.

Timesharing

• As expressed above, deployment or long absences from the child’s life can create a “status quo” that has long term affects regarding timesharing.
• A parent with that has timesharing less than 35% (i.e. 128 days a year) will be on a Worksheet A and pay a higher percentage of support.

Gross income

A service member’s gross income includes:

• Income from any source. This includes:
  • Housing and subsistence allowances (i.e. in-kind benefits that reduce personal living expenses).
  • Jump pay or flight pay.
  • Pay that one receives, but is not taxed.

DOES NEW MEXICO HAVE JURISDICTION OVER MY MILITARY DIVORCE IN ALBUQUERQUE?

Jurisdiction is another word for power. Whether New Mexico courts have power over your divorce depends on three ingredients:

Subject matter jurisdiction

• This means that your divorce needs to be filed with the appropriate court.

Personal jurisdiction

• This means that you must be residing in New Mexico for six months or more before the NM court has jurisdiction over your divorce.

Uniform Child Custody Jurisdiction

• This is also known as “home state” jurisdiction.

Ideally, both parties currently live in New Mexico or are New Mexico residents. Also, the minor children have been living in New Mexico for six months immediately before the divorce is filed, and therefore New Mexico is the home state of the children.

CAN I APPEAR FOR COURT PROCEEDINGS IN NEW MEXICO WHEN I AM STATIONED OUTSIDE OF THE STATE?

Yes. Most New Mexico judges will grant an order that allows you to appear by telephone, when you are stationed outside of New Mexico. However, it is important to have an experienced attorney in New Mexico that can file the appropriate motions and advise you on New Mexico law.

CAN I RECEIVE SPOUSAL SUPPORT WITH MY MILITARY DIVORCE IN ALBUQUERQUE, NEW MEXICO?

Maybe.  Alimony/spousal support in New Mexico is largely based on guidelines.  The two biggest factors impacting alimony in New Mexico are need and ability to pay.  The length of the marriage is also an important factor that impacts length of alimony.  Click here, for more information on alimony in New Mexico.

CALL (505) SANCHEZ FOR YOUR MILITARY DIVORCE IN ALBUQUERQUE, NEW MEXICO

Do you still have questions regarding your military divorce in Albuquerque, New Mexico?  Military divorces in Albuquerque often require the experienced hand and knowledge that comes with years of courtroom practice.  Matthew Legan Sanchez is an experienced NM military divorce lawyer that handles military divorces in New Mexico.  Sanchez can be reached by calling (505) SANCHEZ.