New Mexico Uncontested Divorce

This information is an overview of the uncontested New Mexico divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those "do it yourself divorce" filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in New Mexico.

New Mexico offers No-Fault divorce on grounds of incompatibility. Incompatibility means "... discord and conflicts of personalities such that the legitimate ends of the marriage have been destroyed [thus] preventing any reasonable expectation of reconciliation." Divorce is also permitted on grounds of 1) adultery, 2) abandonment and 3) cruel and inhuman treatment.

In New Mexico, divorces are filed in one of the state’s Judicial Districts. Each district has the authority to make local rules applicable to that court alone. The spouse filing the action is called the Petitioner; the spouse responding is called the Respondent. One of the spouses must be a resident of New Mexico for at least 6 months prior to filing. The action may be filed in any county where either spouse resides.

There is a 30-day waiting period after the divorce papers have been served upon the Respondent. This waiting period can be waived by the Respondent if there are no children in the marriage.

In New Mexico, the most commonly used ground is incompatibility.

In New Mexico, a divorce action can best be understood as a five-step process that includes 1) the selection of forms, 2) the preparation of forms, 3) the filing of forms with the clerk in the district court, 4) the service of process and 5) a court hearing.

The selection of the appropriate forms depends upon whether the marriage has a) minor children or b) no minor children. These forms include 1) Petition (DNM-100-106) and Decree (DNM-200 or 202-206), 2) Minor Child forms, 3) Service of Process and 4) Additional required forms depending upon situation.

If minor children are involved in the action, the Petitioner must select the appropriate Minor Child Forms. They include the following: a) Monthly Child Support Worksheet A (in the case of sole custody), DNM-110, b) Monthly Child Support Worksheet B (Joint Custody), DNM-111, c) Joint Custody Parenting Plan, DNM-225a-b-c, and d) Affidavit Concerning Child Custody, DNM-300 a-b.

The appropriate Service of Process forms depend upon how the Respondent is to be notified about the action. When the couples agree, the Petitioner may serve the Respondent. If Service is by the Petitioner, the appropriate form is the Appearance, Waiver and Consent form, DNM-350. If service is by mail, the forms are Summons form, DNM-400, Notice of Summons, Form DNM-450, which is signed by the Petitioner; and Affidavit of Service by Mail, Form 550, which is signed by the Respondent. If service is by deputy sheriff or process server, two different forms are required, DNM-400 and Return Form DNM-500.

Additionally, one or more of five additional forms may be required depending upon the circumstances of the divorce. They are as follows:

1. Wife’s Consent to Restore Former Name, DNM-600, used when the wife is the Respondent and requests it;
2. Waiver of Waiting Period, DNM-700, used when Respondent signs an Appearance, Waiver and Consent form;
3. Affidavit for Entry of Default, DNM-800, used when service is made by someone other than the Petitioner;
4. Entry of Default, DNM-850, used in conjunction with the Affidavit for Entry of Default.
5. Certificate as the State of the Record and Non-Appearance, DNM-900, used to certify that the Respondent did not answer the Petition.

` Many of the pages of the Petition and Decree forms are the same for both divorces in marriages with or without children. More information is required in some of the blanks in the pages in the Petition when there are minor children. Here are the required forms:

> DNM-100 identifies the parties, the personal information, domiciliary and martital facts;
> DNM-101 states grounds for the action, authenticates that wife is not pregnant, lists children, spousal maintenance and custody;
> DNM-102 details visitation, child support, health insurance, income tax deduction and wage assignment;
> DNM-103 details community property, assets and liabilities;
> DNM-104 includes a request for name restoration and outlines distribution of retirement benefits;
> DNM-105 lists the relief sought.

The Decree forms are completed with the same information used in the Petition. If there are minor children, DNM-200 is the first page in the decree, with forms DNM 202, 203, 204, 205 and 206 making up the rest of the Decree. If there are no minor children, the Decree is paginated from DNM 201, 202, 205 and 206, and so numbered.

The child support worksheets depend upon the custody arrangements. The Monthly Child Support Worksheet A, Form DNM-110, is used in the case of sole custody. The Monthly Child Support Worksheet B (Joint Custody) DNM-111, is used in the case of joint custody. The Joint Custody Parenting Plan, DNM-225a-b-c describes the relevant facts of a joint custody arrangement. The Affidavit Concerning Child Custody, Form DNM-300 a-b, requests pertinent information about the minor children.

The divorce action begins when the Petitioner files the Petition and serves the Respondent. The Respondent must be given a Petition, and if applicable, the Monthly Child Support Worksheet A or B, Joint Parenting Plan, Affidavit Concerning Child Custody and Wife’s Consent to Restore Maiden Name.

If the service is by the Petitioner, the Respondent must be given an Appearance, Waiver and Consent form, which he or she signs. This makes the action uncontested, and it can move through the court easily.

If the service is by mail, the Respondent, in addition to the above indicated forms, must be given a Summons, Form DNM-400, which informs him or her of his or her rights; a Notice and Recipient of Summons Form DNM-450 and Affidavit of Service Form, DNM-550, which confirms delivery of the Summons and Notice.

If the service is by Deputy Sheriff or Process Server, the Respondent, in addition to the above indicated forms, must be given the Summons and Return Form-500, which confirms the receipt of process.

The waiting period begins when the Respondent has been served. It cannot be waived in divorces where there are minor children. If Service is by mail, the Respondent has 23 days to sign and return the Notice and Receipt of Service form; otherwise, the waiting period expires 33 days after the mailing. If service is by Deputy Sheriff or Process Server, the waiting period is 30 days, not counting the day of service.

When the service is by the Petitioner and the Respondent has signed an Appearance, Waiver and Consent form, the Petitioner normally also prepares a Waiver of Waiting Period Form. After this is signed, the Petitioner normally requests a hearing, which is very brief. After a few questions, the judge signs the Divorce Decree.

When the service is by someone other than the Petitioner, and the appropriate waiting period has elapsed without a response from the Respondent, the Petitioner may move for a default. A default happens when the Respondent cannot or will not be located to accept service, or when the Respondent simply does not do anything. This requires that the Petitioner file at Affidavit for Entry of Default Form and Entry of Default Form. In addition to the Affidavit for Entry of Default Form and Entry of Default Form, in order to receive he default, the Petitioner must file the following forms, if applicable:

> Return Form DNM-500 and Summons Form DNM-400, if not previously filed;
> Notice of Summons Form DNM-450, if not previously filed;
> Affidavit of Service Form DNM-550, if not previously filed;
> Certificate as the State of the Record and Non-Appearance, DNM-900.
> Decree of Dissolution of Marriage, Forms DNM-200 -206, or applicable forms.
If a spouse cannot or will not be found, the Petitioner must make diligent efforts to locate him or her. If these efforts fail, the Petitioner may use Service by Publication. In this routine, the Petitioner publishes a Notice in a newspaper informing the Respondent of the pending action. The notice must be published once a week for four consecutive weeks.

To do this, however, the Petitioner must file an affidavit swearing to his or her diligent efforts to locate the missing spouse. After the publication has happened, the Petitioner must file an Affidavit of Publication with the court. The action can move as a default divorce.