To get the process started, one of the parties must file a Petition for Dissolution of Marriage with the Court. There is no particular strategic advantage to filing the Petition for Dissolution of Marriage. New Mexico is a no-fault divorce state so allegations of wrongdoing in the Petition will not gain the filing party any advantage.
Often the decision to file comes down to which party will take the initiative and get the process started. The Petition must be filed, a court filing fee must be paid, a summons must be issued, and the package must be served on the other party to get the process started. More than this, it can be a very emotional first step toward dissolving the marriage. Because it is such a big step, it is understandable why each of the parties might be reluctant to take the first steps.
Though filing the Petitioner first will not gain you any benefit in theDivision of Property and Debt, or the child custody issues, there are other important considerations to be made in deciding whether or not to file. First, if you believe that your spouse is moving, liquidating, hiding or otherwise misusing community assets, then you should file right away. Upon filing of the Petition, the Court will issue a Temporary Domestic Order prohibiting this kind of conduct. Second, if you fear your spouse is running up debt, the Temporary Domestic Order will prohibit this behavior. Finally, if you fear that your spouse will remove the children from the State of New Mexico, the Temporary Domestic Order will prohibit this behavior as well. Violation of the Temporary Domestic Order, particularly the sections related to custody can have very serious consequences, including findings of contempt and arrest. Once the Petition is filed, and the Temporary Domestic Order is issued by the Court, you have a binding Court Order that can be enforced by your attorney.
There are many other reasons why one party or the other would want to initiate the process by filing the Petition. They are too numerous to name and the decision requires individual consideration based upon the unique circumstances of each individual case. Give us a call, email us or fill out the form on this page if you would like to discuss your case.