An Overview of Legal Separation in New Mexico

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The statute of New Mexico recognizes the provision of legal separation and has the documents for the same. The couple needs a written contract dividing the property, determining the rights, responsibilities and duties of the couple and for the settlement of the issues such as child custody, support and visitation along with spousal support, alimony and other issues pertaining to the separation of the couple.

The legal separation in New Mexico is also known as marital separation, which enables the couple to stay separate and apart for helping them resolve the marital issues between them. The process of legal separation is almost same to the process of divorce. However, the only difference between a divorce and a legal separation is that the couple remains technically married but are legally separated.

The only ground for obtaining legal separation in New Mexico is when the couple have stayed separate and apart for at least one year before filing for separation with no intention of getting back together. There should not have been any sexual relationship between the couple in this period and they must state clearly that their marriage is irretrievably broken and thus they need to separate.

The process being same as the divorce process, legal separation is not a cheap or quick option as compared to divorce according to the popular misconception. The process of legal separation takes as much time as the divorce process because the same kind of papers need to be submitted. This makes the process time consuming and lengthy.

Legal Separation Agreement in New Mexico:

As mentioned earlier, in order to get a legal separation in New Mexico, a couple has to sign a settlement agreement, which consists the decisions and directions of important marital issues such as child care, health care, property settlement, financial matters, household bills and other expenses the couple is responsible for, even after separation is granted.

This settlement agreement deals with a variety of issues as mentioned above. Let us have a look at these issues one by one so as to understand the importance of attending each issues during the preparation of settlement agreement rather than conflicting and litigating later. These issues are as follows:

  • Child Custody The custody of the children is decided either by the parents or the court. The court usually encourages the parents to reach a mutual decision regarding the custody issue as the parents know their child better and care for the welfare of the child more than anyone else. They are also aware of the rapport the child shares with each one of them and thus can easily work out whether the child will be happy and carefree with his / her mother or father. According to the statute of New Mexico, the child above 14 years of age has the right to select the parent he / she wants to stay with.
    If the parents fail to reach a conclusion regarding the custody, the court has to intervene and it can hold a separate trial so as to examine the child's will and act in the best interest of the child. A joint custody option is available and it can be worked upon as per the directions of the court.
  • Child Support According to the statute of New Mexico, it is better if the parents chalk out the parenting plan according to their income and the earning capacity. However, this is a much disputed topic that makes it difficult for most of the couples to reach a settlement. When the couples fail to reach a settlement, the court has to intervene and the resultant settlement may not at all be as per the taste of the parents. Besides, it is designed by the court and thus is legally binding on both the parties to follow it throughout.
    When the court decides the child support amount, it uses the Income Shares Model. This model implies that each of the parent has to chip in a specific amount for the expenses of children. This amount is same as the amount they used to pay before the separation, when they lived together as a family. However, some changes may be done considering that each spouse has some new expenses now that they are separated.
  • Visitation Schedule The parents are supposed to design a visitation schedule for the non-custodial parent as he / she is equally responsible for the child even after the couple has separated. Designing a visitation schedule is a task as the parents have to decide when the child will visit the non-custodial parent, who will pick them up and drop them home safely, what would be the rights and responsibilities of the custodial as well as the non-custodial parent, which holiday will be spent with whom.
    The parents can decide the weekly visitation as to weekends, midweek or all the evenings. The school breaks such as summer and spring can be spent with the non-custodial parent along with the vacations such as Christmas, Easter or New Year. Besides, important days such as the birthdays of the family members could be spent with the birthday boy / girl and the rest of the days such as mother's or father's day could be spent with the particular parent.
  • Spousal Support The amount of spousal support is optional. The court considers the income of both the spouses, the earning capability and the need of each partner before determining the amount for spousal support or alimony. The alimony payment could be either temporary or permanent depending upon the need of the dependent spouse. It could be paid as a lump sum amount or in installments for a specific period of time.
Legal separation in New Mexico is a better way to determine if partners really wish to file a divorce in future. The separation gives them time to make their choices and move on in life.

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