Because the Internet is increasing the mobility of our society by facilitating the ability of people to telecommute rather than relocate for a new job, there are many clients who wish to move back to where their family is located before or during a divorce. While such an option was once limited by the need to be close to one’s place of work, technology has unshackled many from their cubicle. A range of benefits can explain the desire to relocate when a marriage deteriorates, but one of the most compelling reasons is the financial, emotional, and childcare support of one’s family. We have addressed a few issues that those who are either contemplating or participating in a divorce may wish to consider before leaving New Mexico.
Residency Requirements
New Mexico like most states imposes a residency requirement that must be satisfied for a divorce to occur in Bernalillo County, Santa Fe County, or the other counties throughout New Mexico. A marital dissolution may not be granted by a New Mexico court unless at least one of the spouses has resided within the state for a six-month period prior to the divorce. While this requirement may be satisfied as long as your spouse meets the criteria, you may not be able to take advantage of New Mexico community property law if both parties leave the state.
Choice of Law Issues
Sometimes you may have the option of filing for divorce in multiple states. If you move to another state but your spouse remains in New Mexico, you must consider which state has laws that are more favorable given your circumstances. New Mexico is a “community property state,” so generally most property acquired during the marriage is divided equally with certain exceptions. The majority of states are “equitable property states” that require marital property to be divided “fairly,” but this does not mean the property will necessarily be divided 50-50. Further, the rules on the duration of alimony as well as the amount of money awarded can vary dramatically based on the state. Some states have even passed alimony reform that essentially eliminates “permanent” or indefinite alimony. If you have the option of filing for divorce in more than one state, it is wise to seek legal advice to determine relevant differences between the laws in each state.
Logistical Challenges
While there are limited situations where a divorce can be completed without a court appearance, the parties in most divorces must appear at least once in court and frequently more than once. If you have kids and have not agreed on all parenting plan terms, you will also need to appear in court or mediation to resolve issues concerning your kids. If it will be cost prohibitive or otherwise too difficult to travel back and forth for divorce proceedings, you may wish to wait to leave the state until the divorce process is completed.
Child Custody & Home State Issues
A parent cannot legally change a child’s residence to another state unilaterally without the consent of the other parent. The decision to relocate your kids without the other parent’s consent or a court order could result in criminal charges for custodial interference or parental kidnapping. Judges may also base a decision to award primary physical custody to the other parent on such conduct as a parent trying to move children of the relationship out of state without the other parent’s consent or a court order.
Two Tips for Making a Divorce Less Contentious
The above information is designed solely to illustrate general principles of law, and does not constitute a specific legal opinion on individual cases. We suggest that you contact experienced legal counsel for a specific opinion tailored to your individual circumstances.
Our Bernalillo County Divorce Lawyers can assess your situation and advise you regarding the potential legal issues if you wish to move out of New Mexico. Jay Goodman & Associates offers a free consultation in our centrally located offices in Santa Fe and Albuquerque so that we can discuss your situation and answer your questions. Call us today to schedule your free consultation at (505) 989-8117 to learn about your rights and options.
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