Understanding Same-Sex Divorce in New Mexico

By Bob Matteucci

Generally, same-sex divorce is no different from the divorce of a heterosexual couple. However, an LGBTQ couple might have other issues that can complicate matters. In New Mexico, a same-sex couple can get a divorce if they had a valid marriage and meet the residency requirement of at least one spouse residing in New Mexico for six months prior to filing for divorce. 

Our courts will decide things like child custody, child support, spousal support, and the distribution of assets and debts the same way they do when a heterosexual couple divorces. Also, New Mexico is a no-fault state, so you do not have to allege any grounds other than irreconcilable differences to get a divorce here. If you need help understanding same-sex divorce, a New Mexico same-sex divorce attorney can help you and your former partner navigate through the process.

The Length of the Marriage 

New Mexico made same-sex marriage legal on December 19, 2013. If you and your spouse were a couple before that date, it will not “count” for purposes of things like community property or marital property.

Let’s say that you and your partner were in a committed relationship for 20 years before 2013. 

If New Mexico had allowed you to marry back in the 1990s, the assets and debts the two of you acquired during those years would get brought into the property distribution evaluation in the divorce process. Because New Mexico divorce law looks only at the length of the marriage, not the length of the relationship, all of the assets and debts for those years will be separate, not community. 

Some might argue that the years spent together before same-gender marriage became legal in New Mexico should count as a common-law marriage. Unfortunately, New Mexico does not recognize common law marriage, so that legal theory will not help in this situation. 

Let’s use the example of a person who bought a house before the marriage and titled the house only in the purchaser’s name. After getting married, the legal owner can add the spouse’s name to the title or deed, making the house marital property. It is possible to retitle vehicles, real property, bank and investment accounts, and other assets to address this problem. 

Legal Parentage of the Children 

New Mexico courts are not allowed to discriminate on child custody, visitation, or other issues on the basis of gender, sexual orientation, or sexual identity. Still, same-sex couples sometimes face a different family dynamic than other couples. 

If both parties adopted a child, the court will treat both of them as any other parent. This fact is true if one or both parents might not be the child’s biological parent. Sometimes, one person is the biological parent of the child from a previous relationship, and the new spouse in these same-sex marriages serves as a stepparent to the child.   

New Mexico does not always require a stepparent to legally adopt the other parent’s biological or adopted child. If you can show the court that you had a psychological bond with the child and did not provide emotional and financial support, the court might find that you have some parental rights to the child. Of course, such a finding can subject you to court-ordered child support. 

One of the tricky and annoying aspects of divorce for a same-sex couple is that many court forms involving child custody, parenting time, and child support use the terms “mother” and “father” to refer to spouses with a child.  A New Mexico family law attorney will help you navigate any tricky terms or phrases used in cases involving children and will advocate on your behalf. In all other aspects, however, New Mexico judges treat same-sex divorces the same way as any other divorce. 

Attorney Bob Matteucci has the experience necessary to protect your rights in a same-sex divorce. Contact him today to schedule your initial consultation.

About the Author
Bob Matteucci is a board certified family law specialist, with a statewide practice in the area of divorce and family law.