When to Consider Legal Separation vs. Divorce

Know all your options in a New Mexico family law case

By Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on July 11, 2023

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If you and your spouse are preparing to split up, you are certainly not alone. What you may not know is that a divorce is not your only option—at least not in New Mexico. Married couples also have the right to opt for a legal separation. Below, you will find an overview of the differences between legal separation vs. divorce in New Mexico state law.

Religious Reasons & the Ability to Remarry

A legal separation does not technically end a marriage in New Mexico. As such, you cannot remarry if you get a legal separation. To be able to remarry, you need to go through the divorce process. With a legal separation, you and your spouse are still married. And that is exactly what some people are looking for, says David L. Walther, a former family law attorney in Santa Fe.

“Legal separation is a far older remedy than divorce. Divorce wasn’t allowed [based on religious reasons for a long time],” says Walther. “It has relaxed a bit since then, but there are still some people who adhere to stricter religious prohibitions against divorce. There are others who have a personal conscience against it. So, a legal separation is an option, because it does not sever the marriage bond, as is a post-nuptial agreement, where you set aside all the money [and determine] what support will be paid. You don’t even need to go into court for that, unless you need to enforce it.”

Financial Decisions and Insurance Benefits

One of the practical advantages of a legal separation is that it allows parties to retain certain financial benefits. For example, an individual may be able to remain on their spouse’s health insurance policy if they get a legal separation. Other benefits, such as disability coverage, may also be accessible.

“You are allowed to stay on a spouse’s health insurance in a legal separation or with a separation agreement,” Walther notes. “In a divorce, you cannot, but there are other remedies like COBRA [Consolidated Omnibus Budget Reconciliation Act] that provides a spouse a certain amount of time to apply for continued coverage. So you can really get around that.”

The chances of [recommending] a legal separation over some other remedies is very slight, unless you’re doing it for jurisdictional purposes. If you come and say, ‘I want a divorce,’ and we say, ‘You can’t get one for six months,’ with a legal separation you can do it immediately.”

Residency Limitations

Walther notes that a lot of people come to New Mexico from other states, and it can pose limitations when it comes to family law disputes.

“To commence a divorce action, you have to be a resident of New Mexico for six months. So when people come to us from other states, and they seek a divorce, the statute says you can commence an action for legal separation if you’re a resident,” he says. “In that case, it’s not defined by a certain length of time, so you can commence an action for legal separation and, if you so choose after six months, convert it to an action for divorce.”

The bottom line: A divorce ends a marriage. It allows the parties to make a clean break from each other and get a true fresh start. In contrast, a legal separation allows the parties to get a court order that mandates their rights and responsibilities in regards to each other while they are still married but planning on living separate lives.

The Specific Circumstances Always Matter

Most couples in New Mexico opt for a divorce over a legal separation. Though, as noted above, there are some advantages to seeking a legal separation. It is always an option that is available to you and your partner. Whether or not a divorce or legal separation makes sense in your case depends entirely on your circumstances, financial position, religious beliefs, and objectives.

“The chances of [recommending] a legal separation over some other remedies is very slight,” Walther adds, “unless you’re doing it for jurisdictional purposes. If you come and say, ‘I want a divorce,’ and we say, ‘You can’t get one for six months,’ with a legal separation you can do it immediately. All you have to do is become a resident: Go rent an apartment and then go vote or apply for a driver’s license. That’s all you need.”

A divorce attorney can help you find the best option. Many divorce lawyers provide free consultations to learn about your case and provide legal advice. Alternatively, an attorney may count consultation fees toward the legal service. Ask informed questions, such as:

  • What is your experience with divorce cases?
  • How are legal issues such as child support, child custody, spousal support, and marital property division decided in New Mexico?
  • How will my health care insurance coverage be impacted by a divorce proceeding?
  • After a final divorce decree, is it possible to make alterations to alimony if my financial circumstances change?
  • What are the key differences between a legal separation agreement and a divorce?

If you have questions or concerns about your legal rights or legal options, contact an experienced New Mexico family lawyer for immediate assistance.

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