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Is New Mexico an alimony state? The correct answer is, "yes, it is" and "No, it isn't." First, yes, New Mexico is an alimony state. NMSA sec 40-4-7 states that a court must take jurisdiction over the issue of alimony in 20-year marriages. That means, if you have been married for over 20 years, the higher-income earner is probably going to pay some alimony to the lower-income earner. I say probably because the alimony amount is determined by one party's ability to pay and the other person's need.
Therefore, if you have a 20-year marriage, but the lower-income earner doesn't need alimony, the higher-income earner should not have to pay. Alternatively, if both parties earn similar incomes, there is no need, and neither will pay the other.
For help with your alimony case, contact our office online or via phone at (505) 544-5126.
How Do Alimony Payments Work in NM?
The ability to pay is based on a formula as follows:
Payor's gross monthly income multiplied by .3 Minus the payee's gross monthly income multiplied by .5.
If the remainder is a positive number, some form of payment may be due. For example, let’s say John earns $5,000 per month, and Cindy earns $2,000 per month. $5,000 x .3 = $1,500 $2,000 x .5 = $1,000. The difference is $500, which is John’s recommended alimony payment to Cindy.
The formulas are reduced by the tax savings amount. Alimony is no longer taxable to the payee nor deductible by the payor. There are further reductions if the payor also pays child support. The worksheets can be found here.
How Long Will My Alimony Payments Last?
After reviewing need and ability to pay, the court will look at the length of the marriage. A marriage of fewer than five years will rarely result in an alimony payment. A marriage of 15-20 years will generally see alimony, and marriages of varying lengths in between will depend upon the calculations. Once you determine the amount, you need to determine the term of alimony and the type of alimony. The longer the marriage, the longer the term of alimony payment. One generally sees alimony in marriages of ten years or more, for one-third to half the length of the marriage.
But again, all factors must be considered. A 15-year marriage with income differentials of $20,000 will probably not result in any alimony, even if the higher income earner earns more than $200,000.00, But a 10-year marriage where the wife has little income and attends school may result in five years of alimony payments.
New Mexico defines four types of alimony:
- Indefinite,
- Rehabilitative,
- Transitional, and
- Lump-sum.
Indefinite alimony is when the payor pays for an indefinite period of time. It also means the amount is modifiable. You see indefinite spousal support in long-term marriages, where the lower-income earner has generally not worked outside the home during the marriage. The advantage of this type of alimony is that it is modifiable. If the payee remarries, the support will generally cease. If the payee starts working, the amount will be reduced. Payments will be required until retirement, at which time, the amount would be modified. The modified payment may continue until either party's death.
Rehabilitative alimony is what it sounds like. It's a payment for a set period of time to help the lower-income earner get back on his/her feet or perhaps attend school. You often see rehabilitative alimony in 10-15 year marriages for four years, enough time to help the lower-income earner obtain his/her degree. The formula for calculating the amount will be the same formula as above.
Transitional alimony is also exactly what it sounds like. It helps the lower-income earner transition into his/her living off only one income or transition back into the workforce. I see this form of alimony in marriages of 10 years or less where the lower-income earner may have a degree but may have stayed at home with the children. We also see this type of alimony when one party is a high-income earner and the other party is not, but it was not a long-term marriage. This alimony levels the playing field for a short period of time, generally three to seven years.
Both rehabilitative and transitional alimony are modifiable, but generally, the support will cease when the divorce decree says it will cease. For instance, a recent client of mine received transitional alimony of $2,400 per month for three years. Although the other party filed a motion to modify the amount and the length of the term, it is unlikely the court will do so. The court will only modify this amount if there has been a significant change to the parties' circumstances, one party's job loss, or marriage. However, in such a case, the lower-income earner may argue that despite the three years of support, she was still not self-supporting, and the court may award her additional support.
Lump-sum, non-modifiable alimony is probably the most common type of alimony in New Mexico. This is alimony that is payable in a certain amount for a certain period of time. A typical amount is $60,000, payable at the rate of $1,000 per month for five years. This type of alimony is often preferred by men and women alike. Lower-income earners like this type of alimony because it's predictable and non-modifiable.
The party receiving the alimony can go back to work or quit a job or get married or go back to school and not worry about the amount changing in any manner or for any reason. The paying party also likes this form of alimony because of the predictability. But one must understand that with this form of alimony, the amount is non-modifiable. A job loss and even death will not cause a cessation of the payments.
The total amount will be guaranteed by life insurance so that even if the payor dies, the recipient will still get his/ her payment for the full length of the term. The payor can plan for this type of payment. The life insurance to ensure the alimony is often forgotten by ill-prepared attorneys and must always be bargained for, including how the policy is paid for, who pays for the policy and who is entitled to see the terms of the policy, and how frequently a party may be provided the terms of the policy.
With all this being said, New Mexico is not always an alimony state. With more women working and more women judges, the playing field has been more leveled in the 25 years since I have been practicing. Fewer men are being ordered to pay support. This is because either more wives are working or because there are more female judges who believe, if they are working, other women can be working. I have found these young, female judges less likely to order more long-term support. A knowledgeable attorney can help you pick the right judge for your case (within reason). This is yet one more reason to choose the right attorney who knows how judges rule in all areas of the law.
Our attorneys have collectively been practicing for nearly 40 years. We know the judges, we know some of their predictability and we know New Mexico changes and changes to those laws that occur from year to year.
To schedule a consultation with our team, contact us online or via phone at (505) 544-5126.