FAQ: Steps of a Divorce - Text

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Notice:
This presentation is intended for basic informational purposes only and does NOT contain a complete explanation of family law. We highly recommend that you obtain a lawyer to help you understand your situation, and to interpret the guidelines and laws that apply to your case.

1.0 Introduction
The Steps of a Divorce gives you basic information on the steps involved in getting a divorce in New Mexico.

When you seek a divorce, you and your spouse can try to reach a settlement agreement on the issues involved with your divorce or you can choose to go through the court process and litigate your case.

2.0 Settlement
It can be a very good idea to resolve your own issues, and can save you time and money. These agreements are usually put into a document called a Marital Settlement Agreement. Marital Settlement Agreements are very common. In fact, most cases are resolved by agreement.

If you and your spouse choose to try to reach an agreement, you can either get help from a mediator, or you can try to reach an agreement on your own without any help from a third party.

3.0 Mediation
A mediator is someone who helps people to understand each other and can help you reach an agreement on the issues. A mediator can also help you save time and money by avoiding the costs of going to court.

You can find a mediator by looking on the New Mexico State Bar Association website, by exploring the free and low-cost help section of this site, or by looking in the yellow pages.

4.0 Standard Forms
If you and your spouse reach an agreement, with or without the help of a mediator, you both must submit this agreement to the court for approval in order for the agreement to be legal and binding.

There are forms you may use to show the judge that you have come to an agreement by yourselves. The forms come in packets depending on your situation. You should choose the packet of forms that matches your situation. The packet will contain all the forms you need. Forms can be found at the clerk’s office or here.

When you fill out the forms, you can choose to have a lawyer help you, or you can fill them out yourself. If you choose to be your own lawyer, you are called a “self represented” litigant. If you do not understand these forms, or you have a particularly complex case, we strongly suggest that you obtain the help of a lawyer.

A judge has a neutral role. This usually means that the judge will NOT meet with only one of the parties in a case to talk about the case. To meet with the judge, you usually must ask in writing for a hearing and the all parties will be told when the hearing will be held.

The staff of the court also has a neutral role. The staff can provide you with general information about court rules, procedures and practice. What you do with that information is your responsibility.

The staff cannot give you advice about what you should do in your case. This means that the staff CANNOT tell you what to put into your forms, or advise you about what to say in court. Finally, the staff CANNOT guess about what decision the judge might make.

5.0 Litigation
If you and your spouse cannot reach an agreement on the terms of the divorce, you may choose to go through the court process and litigate your case. To litigate means that you go through the court process and you let a judge make the decisions for you.

You can choose to get help from a lawyer or you can choose to represent yourself. If you choose to represent yourself as a self-represented litigant, you must follow the appropriate rules and procedures. These rules and procedures can be found in the statues. If you don’t have a lawyer, you are responsible for whatever happens to you in your case.

6.0 Initiating Litigation
The divorce process begins when a married person files a Petition for Dissolution of Marriage asking a court to end the marriage. This document must be filed whether or not the parties agree on the terms of the divorce.

The person who files the petition is called a petitioner and the other person, your husband or wife, is called a respondent. The petition is a document that tells the judge that you want a divorce and describes what you want from the divorce. The petition must be verified, which means that you must swear that the statements in the petition are true. Make sure the statements ARE true before you sign the petition. The courts charge a filing fee to file a petition. If you believe that cannot afford the filing fees, you can file a motion asking that the fees be waived. A judge will decide if you must pay the filing fee. If you later change your mind about the divorce you WILL NOT get your filing fee back. After a petition has been filed, unless both parties have come to an agreement about the issues in the divorce, the petition must be personally served on the other party.

“Service” generally means that the other party has been notified about the case in the court, usually by serving that person personally with a copy of the papers that have been filed with the court. A sheriff can serve the papers on the other party for a small fee. There are also other possible ways to serve the papers on the other person. See a lawyer if you have questions about how to serve the papers on the other person. This is a very technical issue, make sure you do it correctly.

7.0 Response
If you are the respondent and you do not agree with your spouse, or you do not know if you agree with your spouse, you must respond to the petition generally within 30 days of service. In your response, you can also tell the court what you want.

If you do not respond in writing within 30 days, the petitioner may ask the court to issue a Default Decree. This means that the judge may sign a final decree that gives the petitioner what the petitioner asked for in the petition. After a response is filed, the case moves forward in the court system and the judge may issue an order or orders about things that should happen in the case.However, please note that you and your spouse are responsible for making sure your case proceeds through the court process. A court usually will not automatically schedule a hearing or fill out any paperwork for you.

Note that after the respondent has been served, each party must mail a copy of every document that is filed to the other party.

After a response is filed, the court may issue a temporary domestic order. This order tells a husband and wife how they have to behave during the time the divorce is in the court system. Each party must thoroughly read and closely follow the temporary domestic order. It is a formal court order. After the response has been filed, either party may file a request for a trial so that the judge can hear the case.

Please note that even if you and your spouse do not agree on a divorce at the beginning of the process, you can change your minds and sit down with each other and reach a settlement agreement at any time before the judge signs the final decree. You can file a Motion for Entry of Final Decree at any time, to notify the court that you have reached an agreement. If you reach an agreement after the filing of a Petition for Dissolution of Marriage, there are forms available from the court clerk or here that you can use to show the court your agreement.

8.0 Trial
If the case does not settle by agreement of the parties, the judge will hold a trial. At the trial, the judge will listen to both sides as you tell your story.

After the trial, the judge will issue a decision. You must follow this order after it is issued.

9.0 Conclusion
When you file court papers or appear in court as a self-represented litigant, you are your own lawyer. Get the help you need before you file papers with the court or appear in court in your case.

If you follow these suggestions, the court can more quickly and efficiently resolve the issue that brought you to court.

New Mexico Administrative Office of the Courts. (Approved video script ver .09 5/23/02)