Adultery in New Mexico - Does Cheating Affect Alimony?

States differ widely on how and when alimony is awarded to spouses. Some states award alimony for only financial reasons. Other states use alimony to punish spouses for marital misconduct such as cheating. Where you live will determine what you can get out of your request for alimony.

As many spouses know, cheating often has consequences. Aside from the effect of cheating on the marriage itself, cheating may affect the divorce process and any alimony awards received by the spouses. Each state varies on how exactly adultery will affect an alimony award, and so this article is intended to clarify that issue for the state of New Mexico.

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The Nature of Divorce in New Mexico

Before discussing whether adultery or cheating would affect an award of alimony or spousal support, the nature of divorce in New Mexico must be examined.New Mexico has four grounds for divorce. While New Mexico does have a no-fault divorce provision, three of the grounds for divorce in New Mexico are fault grounds. One of the available New Mexico fault grounds is adultery.¹

About New Mexico Alimony Rules

New Mexico’s alimony statute refers to alimony as spousal support.² Four types of spousal support are available: traditional spousal support; lump sum support; rehabilitative spousal support, and transitional support. The different between traditional spousal support and lump sum support is the timing of payments. Lump sum support is due in one payment immediately, whereas traditional spousal support is spread over periodic payments. Rehabilitative spousal support is designed to provide money to a dependent spouse to seek higher education or vocational skills that will help that spouse earn a self-sustaining living after a period of time. Transitional spousal support on the other hand amounts to basic, short term payments to help get a recently divorced spouse set up in a separate environment from marriage.

New Mexico law requires courts to consider ten different factors in awarding spousal support. How the court evaluates these factors will affect both the duration and amount of support. The most important of these factors are:

• The age, health, and means of support of the spouses;
• Each spouse’s earning capacity;
• Whether either spouse has made a good faith effort to find and maintain employment;
• The financial needs of the spouses; and
• The property and debts owned by each spouse.

In satisfying spousal support awards, the court can require either spouse to transfer title to property rather than just pay money.³

The Effect of Adultery and Other For-Cause Grounds for Divorce on Alimony

New Mexico’s spousal support statute is silent on the effect of fault. It is not entirely clear based on the face of the statute whether fault should be considered. That said, the fact that fault is not listed in the statute as a reason for the awarding of spousal support implies that courts cannot consider fault. Divorce law is based primarily in statute, therefore if the statute does not mention it, it does not apply.

The Verdict:

Because fault is not a consideration in New Mexico divorce law, adultery will not affect the result of an alimony determination. Even though New Mexico allows courts to consider adultery in the divorce process, the award of spousal support is a purely financial consideration.

If your spouse has been cheating on you and you plan to sue for divorce, you should consider contacting a local divorce attorney for assistance. Divorces involving adultery claims tend to be very messy lawsuits and will be very difficult to litigate on your own. Your rights can be best protected by proactively protecting your ability to succeed in your divorce litigation.

Note: This is not legal advice. Please consult a lawyer for your specific situation.