GUIDE FOR PRO SE LITIGANTS (DRAFT)
TABLE OF CONTENTS
I.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II.
SCOPE OF GUIDE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
– NOTE: THIS GUIDE ONLY COVERS CERTAIN TYPES OF CASES AS OUTLINED BELOW.
SPECIFICALLY, IT DOES NOT COVER CRIMINAL CASES OR COMPLEX CIVIL CASES.
III.
DISCLAIMER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
IV.
GETTING FAMILIAR WITH YOUR COURTHOUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
a. LOCATIONS: CHAVES, EDDY & LEA COUNTY
b. SECURITY
c. NO CELL PHONES ALLOWED
d. THE CLERK’S OFFICE
e. THE COURTROOM
V.
GENERAL COURTROOM RULES AND ETIQUETTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
a. DRESS APPROPRIATELY
b. NO FOOD, DRINK, OR GUM CHEWING ALLOWED
c. SPEAK AND ACT RESPECTFULLY TO THE JUDGE
d. ADDRESS THE OPPOSING PARTY THROUGH THE JUDGE, NOT DIRECTLY
e. FOLLOW THE COURT’S ORDERS
f. DO NOT DISCUSS THE CASE WITH THE JUDGE UNLESS OPPOSING COUNSEL IS PRESENT
g. PLEASE AVOID BRINGING SMALL CHILDREN INTO THE COURTROOM DURING HEARINGS
h. PROVIDE A COPY OF DOCUMENTS FILED WITH THE COURT TO THE OPPOSING PARTY
i. GET HELP IF YOU ARE AN INDIGENT PRO SE LITIGANT
j. PLEASE PROVIDE ADVANCE NOTICE IF YOU WILL NEED AN INTERPRETER
VI.
FAMILY LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
a. DIVORCE, CHILD CUSTODY, AND SUPPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
i.
JURISDICTIONAL REQUIREMENTS
ii.
REASON FOR DIVORCE
iii.
CONTESTED VERSUS UNCONTESTED DIVORCE – THIS GUIDE ONLY COVERS
UNCONTESTED DIVORCES
iv.
FOR AN UNCONTESTED DIVORCE, USE INTERNET RESOURCES AVAILABLE
v.
COMPLETE A PETITION FOR DIVORCE
vi.
ATTEND MANDATORY ORIENTATION – IN EDDY COUNTY ONLY
vii.
COMPLY WITH THE TEMPORARY DOMESTIC ORDER
viii.
GET A TEMPORARY RESTRAINING ORDER IF NECESSARY (OPTIONAL)
ix.
DETERMINE THE DISTRIBUTION OF PROPERTY
x.
DETERMINE CHILD CUSTODY
xi.
DETERMINE CHILD SUPPORT
xii.
FILE A WAGE WITHHOLDING ORDER (OPTIONAL)
xiii.
DETERMINE SPOUSAL SUPPORT (OPTIONAL)
xiv.
REQUEST A NAME CHANGE IF NECESSARY
xv.
FILL OUT THE FINAL DECREE
xvi.
FILE ALL REQUIRED FORMS WITH CLERK’S OFFICE AND SET A HEARING
xvii.
THE COURT HAS CONTINUING JURISDICTION OVER CHILD CUSTODY AND SUPPORT
b. DOMESTIC VIOLENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
i.
GET A TEMPORARY PROTECTION ORDER (TPO)
ii.
ATTEND THE HEARING AND BRING EVIDENCE
iii.
THE FINAL ORDER
c. NAME CHANGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
VII.
i.
FILE A PETITION AND SCHEDULE A HEARING
ii.
PUBLISH NOTICE OF HEARING
APPEALS FROM MAGISTRATE AND MUNICIPAL COURT . . . . . . . . . . . . . . . . . . . . . . . 15
a. FILE A NOTICE OF APPEAL WITH THE DISTRICT COURT WITHIN 15 DAYS OF
JUDGMENT OR FINAL ORDER FROM MAGISTRATE OR MUNICIPAL COURT
b. SERVE THE OPPOSING PARTY WITH A COPY OF THE NOTICE OF APPEAL
c. FILE A COPY OF THE NOTICE OF APPEAL IN MAGISTRATE OR MUNICIPAL COURT
2
I.
INTRODUCTION
In New Mexico, it is a general rule that pro se litigants must comply with the rules and
orders of the court and will not be treated differently than litigants with counsel. In fact, as a pro
se litigant, you will be held to the same standard as attorneys are, even though you may not have
been through three years of law school or have taken the New Mexico Bar Examination.
However, the law is typically so complex that even trained lawyers struggle to find the answer.
Therefore, pro se litigants often have a difficult, up-hill battle when they choose to represent
themselves. This guide provides some general information you need to know to represent
yourself in court in the Fifth Judicial District of New Mexico.
II.
SCOPE
First of all, this guide is specific to the rules and procedures of the Fifth Judicial District
courts of New Mexico. The Fifth Judicial District includes Chaves, Eddy, and Lea counties.
Please note that other judicial districts around New Mexico may have adopted their own local
rules that are different from the local rules of the Fifth Judicial District. Thus, this guide only
applies to pro se litigants involved in a case in state district court in Chaves, Eddy, or Lea
County. Furthermore, this guide does not provide help to pro se litigants who choose to appeal
their case to the New Mexico Court of Appeals or the New Mexico Supreme Court.
Second, this guide only covers limited types of cases and is not intended to cover all
areas of the law. In the Fifth Judicial District, the most common area of the law in which people
choose to represent themselves is family law. Therefore, this guide explains the rules and forms
required for preparing and presenting certain types of domestic affairs cases, such as divorce,
child custody, child support, and domestic violence. This guide is intended to cover the more
simple matters of the law, for which people frequently chose to forego the cost of hiring a lawyer
and handle themselves. Accordingly, this guide does not cover criminal matters or complex civil
cases. If you have a question not covered by this guide, please consult an attorney or go to
www.nmlegalaid.org to find a Legal Aid office or attorney in your area.
People often choose to represent themselves in magistrate or municipal court. If you are
dissatisfied with the finding of the lower court, you may appeal to district court. This guide will
also provide the rules stating how and when you may appeal from magistrate or municipal court.
Lastly, this guide will refer frequently to three important resources where much of the
information below may be found online: (1) www.nmcourts.gov, which is the website for the
Judicial Branch of New Mexico, (2) www.supremecourtlawlibrary.org, which is the website for
the law library of the New Mexico Supreme Court, and (3) www.fifthdistrictcourt.com, which is
the website of the Fifth Judicial District of New Mexico. Pay specific attention to the sections
below that discuss these websites, as they include many of the forms you will need and
instructions on how to fill the forms out. If you do not have access to the internet from your
home, you may get online at your local library.
3
DISCLAIMER:
PLEASE NOTE THAT THE INFORMATION
CONTAINED IN THIS GUIDE IS GENERAL IN
NATURE. IT IS NOT LEGAL ADVICE. FOR MORE
SPECIFIC QUESTIONS, CONSULT AN ATTORNEY.
4
III.
GETTING FAMILIAR WITH YOUR COURTHOUSE
Of course, every courthouse is designed differently. However, a few general rules will
help you find your way around.
A. Locations. The Fifth Judicial District has three district courthouses, depending on
where your case may be filed. Each courthouse location and its contact information, which may
also be found on www.fifthdistrictcourt.com, are as follows:
Chaves County Courthouse
Located at: 400 N. Virginia, Roswell, NM 88201
Send Mail to: P.O. Box 1776, Roswell, NM 88202-1776
Roswell Court Admin.: 575-622-2565
Court Admin. Fax: 575-624-9506
Roswell District Clerk: 575-622-2212
Roswell District Clerk Fax: 575-624-9510
Eddy County Courthouse
Located at: 102 N. Canal, Carlsbad, NM 88220
Send Mail to: 102 N. Canal, Suite 240, Carlsbad, NM 88220
Carlsbad District Clerk: 575-885-4740
Carlsbad District Clerk Fax: 575-887-7095
Lea County Courthouse
Located at: 100 North Main, Lovington, NM 88260
Send Mail to: Box 6-C, Lovington, NM 88260
Lovington District Clerk: 575-396-8571
Lovington District Clerk Fax: 575-396-2428
In each courthouse are the district judges for that county, the clerk’s office where pleadings are
filed, and the courtroom where your hearings will take place. You need to get familiar with the
inter-workings of your particular courthouse to ensure you will not be late for important
hearings.
B. Security. Upon entering any of the three courthouses listed above, you will have to
pass through a metal detector. The main purpose behind this requirement is to protect the district
judges and court personnel by ensuring that people do not bring weapons into the building. You
will be required to place any bags, briefcases, or purses on a conveyor belt so a court security
guard can examine what is inside of that bag, briefcase, or purse. You will also be required to
walk through the metal detector and may have to empty your pockets or remove jewelry, belts, or
shoes that may trigger the metal detector sensors. Although this process does not take near as
much time as going through airport security, please plan ahead and leave plenty of time to get
into the courthouse. Being late for a hearing because you were stuck at the security checkpoint is
usually not an excuse judges like to hear.
5
C. No cell phones. As a general rule, you are not allowed to take your cell phone into
any of the courthouses in the Fifth Judicial District. Only members of the New Mexico State Bar
Foundation (that means only attorneys) who have trials or hearings scheduled at the courthouse
are allowed to bring their cell phones into the courthouse. Therefore, you will be required to
leave your cell phone in your car if you bring it with you to the courthouse. Please plan
accordingly.
D. The clerk’s office. The district court clerk’s office is where you will file all your
pleadings and legal documents. Pleadings are the legal documents that set forth your claims
and/or defenses of the lawsuit. The clerk’s office keeps a record of your case from beginning to
end, which contains every legal document filed in the case by you or your opponent, and those
documents issued by the judge, such as his/her orders. You can review and make copies of the
documents in your own court file, but you will not be allowed to remove the file from the
courthouse. The clerk’s office can also tell you which judge has been assigned to your case.
E. The courtroom. Each district judge has their own regular courtroom where they hold
trials and other hearings. Each courthouse in the Fifth Judicial District posts a docket every day
in the morning that lists the scheduled court hearings for that day. The docket tells you the
courtroom where your hearing will take place. The docket also tells you the time of your
hearing, however, you should always check that fact before you come to the courthouse.
Missing a hearing date can have bad consequences for your case, such as a dismissal. In fact,
even if you have memorized where you are supposed to be and when, you should always verify
the place and time of your hearing once you get to the courthouse as the judge assigned to your
case may be in a different courtroom than his/her regular one or the docket may have changed.
In New Mexico, almost all trials and hearings are open to the public. Therefore, unless a
sign outside the courtroom or court personnel tells you otherwise, you may enter into the
courtroom and sit in the gallery. However, please do so quietly to avoid interrupting a hearing in
progress.
6
IV.
GENERAL COURTROOM RULES AND ETIQUETTE
Respect for the justice system, its rules, its employees, and its customs is taken very
seriously by the district judges of the Fifth Judicial District. You want to present the strongest
case possible, and putting your best foot forward includes following a few local customs and
rules of etiquette. As a starting point, you should be courteous to everyone, including court
personnel.
A. Dress appropriately. You do not have to wear a black suit and tie to court, but you
should dress appropriately. You should remember that if your opponent has hired an attorney,
his/her attorney will most likely be wearing a suit. Therefore, as a general rule of thumb, you
should dress as if you were going to a job interview. For example, men could wear a nice
collared shirt and slacks. Women could wear a nice button-up shirt and slacks or a professionalstyle skirt. However, you may also wear casual clothes. You may absolutely NOT wear tube
tops, tank tops, inappropriately low-cut shirts, shorts of any kind, capri pants, mini-skirts,
worn-out jeans with holes in them, or gang wear. If you wear any of these prohibited articles
of clothing, you will NOT be allowed to enter the courtroom. This may have adverse effects on
your case. Furthermore, if you are wearing a hat and/or sunglasses, you will be asked to remove
them when you enter the courtroom.
B. No food, drink, or gum chewing allowed. You may not bring food or drinks into the
courtroom. Water will be provided for you at counsel’s table. In addition, you cannot chew gum
in the courtroom.
C. Speak and act respectfully to the judge. The judge is the man or woman who will
preside over your hearings. The judge wears a black robe and sits at the judge’s bench in the
front of the courtroom. The judge has the power to make rulings on pretrial motions and when
there is no jury, he/she decides who wins. The judge should be addressed as “Your Honor” or
“the court” or “Judge (insert judge’s last name).” Do not say “Sir” or “Ma’am.”
You should always stand when the judge enters the courtroom. Typically, you will be
prompted to do so by the judge’s bailiff, for example, “All rise for the judge.” If you do not
stand, the judge will take your behavior as a sign of disrespect for the justice system. That is not
a good beginning to your hearing or trial. Once the judge enters the courtroom, do not sit until
he/she has told you to do so.
Do not interrupt the judge. Furthermore, you should always stand when addressing the
judge. For example, if the judge asks you a question, stand to answer it. If you are arguing a
motion you filed in front of the judge, stand to argue it.
D. Address the opposing party through the judge, not directly. In addition, refer to the
attorneys and parties by their last name, such as “Mr. Smith.” For example, you should say
“Your Honor, Mr. Smith told me he received a copy of the final divorce decree I drafted.” Do
not say “Bob, you told me you received a copy of the final divorce decree I drafted.”
E. Follow the court’s orders. If you do not, you could be held in contempt of court. The
proper way to oppose a court’s order that you do not think is correct is to file a motion requesting
relief from that court’s order.
7
F. Do not talk about the case with the judge without opposing counsel or the opposing
party (if also pro se) present. This is referred to as an ex-parte communication and it is not
allowed by the New Mexico Rules of Procedure.
G. Please avoid bringing small children into the courtroom during hearings. While
small children are allowed to come into the courthouse, they are sometimes excluded from the
courtroom if they disrupt proceedings. The hearings that will occur in the cases covered by this
guide are typically brief. It will most likely be difficult for you to be your own attorney and
watch your child. It is strongly recommended that you arrange for a babysitter when you have a
court hearing scheduled, if you can afford to do so.
H. Make copies. As a general rule, you must provide a copy of every document you file
in your case to the opposing party. It is also wise to make an additional copy of every document
for your own file.
I. Help for indigent pro se litigants. If you cannot afford to pay the court costs required
to begin your case, you may file an “Application for Free Process and Affidavit of Indigency”
and an “Order on Application for Free Process.” You may ask your local clerk’s office about
obtaining these forms. You may also find these forms online at
www.supremecourtlawlibrary.org/distciv.htm as Form 4-222 and Form 4-223.
J. Provide advance notice to clerk’s office if you will need an interpreter. All hearings
and trials in the Fifth Judicial District are conducted in English. Therefore, a non-English
speaking citizen may make a request for an interpreter in the district court clerk’s office. Please
make your request for an interpreter in advance, that is, before your hearing. Keep in mind that
you may have a family member or friend come to court to interpret for you.
8
V.
FAMILY LAW – DOMESTIC AFFAIRS
As stated in the “Scope” section, this guide does not apply to criminal cases or complex
civil cases. Rather, its scope is limited to cases that are simple enough for non-lawyers to handle
on their own. Therefore, the following rules only apply to certain types of family law matters,
such as if you are getting a divorce or you need child support, child custody, or protection from
an abusive spouse.
Here are just a few examples of how a family law case may differ from your typical civil
case. Judges alone decide such family law matters. You may be required to participate in some
type of mediation program before going to court. There is not usually a trial, but instead a few
short hearings to resolve important issues. Now we will look at few specific family law matters.
A. DIVORCE
Divorce is the most common type of family law case in which people represent
themselves. While doing your own divorce is feasible in some cases, there are still important
steps you must take and procedural rules you must follow.
1. Make sure you meet the jurisdictional requirements. Before you can file a petition for
divorce in New Mexico, either you or your spouse must have resided in New Mexico for at
least six months immediately preceding the date of filing and have a domicile in New Mexico.
“Domicile” means that the person is physically present in this state, has a place of residence in
this state, and has a present intention in good faith to reside in this state permanently or
indefinitely. Furthermore, any person serving in the military who has been continuously
stationed in New Mexico for a period of six months will meet the domicile requirement. This is
not a hard requirement to meet, but if you fail to meet it, the judge will dismiss your petition.
The petition for divorce may be filed in the county where either spouse resides, but the
petition must be filed in a county where at least one spouse resides.
2. Identify why you need a divorce. In New Mexico, a district court may decree a
dissolution of marriage on any of the following grounds: (1) incompatibility; (2) cruel and
inhuman treatment; (3) adultery; or (4) abandonment. Incompatibility is the most common
ground for a divorce and exists when, because of discord or conflict of personalities, the
legitimate ends of the marriage relationship are destroyed preventing any reasonable expectation
of reconciliation.
3. Is your divorce contested or uncontested? Your divorce is considered uncontested if
you and your spouse agree on all major decisions in the dissolution of the marriage, such as
property distribution, child support, and child custody, if you have children. In this case, the
parties usually only have to go to court to file the necessary paperwork and to get the judge to
sign off on their final decree. As discussed later, parties to an uncontested divorce in Eddy
County must also complete a pro se orientation class. Uncontested divorces are more common
when the parties agree to have a “friendly” divorce or there are no children from the marriage or
the property distribution is simple.
9
On the other hand, a divorce becomes contested when one spouse files a “petition” for
divorce and the other spouse files a “response.” By filing a response, the other spouse is
essentially alerting the court that the spouses do not agree on all major decisions. Contested
divorces typically occur when there are bad emotions between spouses, valuable property is
involved, or issues of custody and support of minor children exist. Contested divorces are
naturally more complex procedurally and it may be wise to consult an attorney before deciding
to handle a contested divorce on your own. To be clear, this guide is not intended for those
spouses involved in a contested divorce; while some of the general rules may apply, this guide
does not cover all procedural steps that may be necessary in such a case.
Note: An uncontested divorce may turn into a contested divorce (if the spouses realize
they do not agree on all major decisions) and vice versa (if the spouses realize they can reach an
agreement, possibly through the help of a mediator).
4. If your divorce is uncontested, USE the online resources to guide you through the
process!! Fortunately, the state of New Mexico recognizes that many people try to handle their
divorce without hiring an attorney. Thus, as mentioned previously, this state provides many
resources for pro se litigants to help them through the process. For your assistance, attached is a
guide to show you how to navigate through the www.nmcourts.gov website. The next few steps
will refer you to forms you can get online that you will need to fill out and bring to court.
Remember, the forms discussed below may ONLY be used if both husband and wife
have already agreed not to contest the following: (1) the court granting the parties a divorce; (2)
how the husband and wife will divide all of their property and debts; and (3) if the husband and
wife are the parents of one or more children under the age of 18, a parenting plan and child
support obligation for their children.
5. Costs. Filing a petition for divorce in New Mexico currently costs $137.00. If you
cannot pay the full filing fee, you may file an “Application for Free Process and Affidavit of
Indigency” and an “Order on Application for Free Process.” You may ask your local clerk’s
office about obtaining these forms. You may also find these forms online at
www.supremecourtlawlibrary.org/distciv.htm as Form 4-222 and Form 4-223.
6. Complete a verified petition for dissolution of marriage and give notice to other
spouse. If you are reading this guide, you have most likely already filed a petition for divorce. If
not, you may obtain the appropriate form online following the steps in the attachment. If you do
not have children, you will need Form 4a-301 “Petition for dissolution of marriage; no
children.” If you have children, you will need to fill out Form 4a-302 “Petition for dissolution
of marriage; with children.”
The spouse filing the petition, the “Petitioner,” must give notice to the other spouse, the
“Respondent.” In an uncontested divorce, notice or “service of process” should not be a problem
because you and your spouse have already agreed on major decisions of the divorce.
If your divorce is uncontested as defined above AND you or your spouse owe child
support as calculated below, you must also fill out Form 4a-102, which is titled “Domestic
relations information sheet.” You must give the completed form to the court clerk at the time
you file your petition. This form is required by New Mexico and federal law for child support
enforcement. The “Respondent” is also required to fill this form out when he/she files their first
document with the court.
10
7. Attend the mandatory orientation for pro se litigants. In Eddy County only, spouses
who wish to handle their own uncontested divorces must complete a mandatory orientation
session. No hearings will be scheduled regarding your divorce until you attend this orientation
session. When you file you petition for dissolution of marriage in the clerk’s office, they will tell
you the upcoming dates of the orientation sessions.
8. Comply with the temporary domestic order (TDO). As a general rule, once the
petition for dissolution of marriage is filed and the Respondent receives notice, a mutual
restraining order, also referred to as a “Temporary Domestic Order” goes into effect which offers
the parties some protection. This “TDO” provides that (1) neither party may dispose, transfer,
encumber, or conceal marital property, except in the usual course of business or for necessities;
(2) neither party may harass or molest the other party; and (3) neither party may remove the
minor children from the state without the written permission of the other parent. The TDO is
required to be issued, unless otherwise ordered by the court.
9. Determine if a temporary protection order (TPO) is necessary. A TPO is different
than a TDO in that a TPO does not automatically issue upon filing a petition for divorce. If your
spouse physically abuses or mentally harasses you or your children or seriously threatens to, you
may need to obtain a TPO for you protection and safety. However, a TPO is usually not
necessary in an uncontested divorce.
10. Determine who gets what. New Mexico is a community property state. This means
there is a presumption under New Mexico law that all property (assets and debts) acquired after
marriage and before the final decree of divorce is issued is owned equally by each spouse. All
property acquired by either spouse before the marriage or after the final divorce decree is entered
is that spouse’s separate property. Thus, upon divorce, you and your spouse will each take half
of the marital assets and debts and keep your separate property, unless otherwise agreed.
The spouses may agree in a Martial Settlement Agreement to divide the property in any
way they see fit, and the court will respect the spouses’ agreement as long as it is not grossly
unfair to one spouse. In an uncontested divorce, there should be no major disagreements as to
how to distribute the marital property. If a minor disagreement exists, please know the value of
the property so the judge may determine how to fairly divide the asset or debt. Furthermore, to
prevent problems in the future, if one spouse takes an asset, such as the family home, it is a wise
that he/she should also take on the debt associated that asset, such as the mortgage. You may
find the marital settlement agreement form online, which is Form 4a-311 [or 312] “Verified
marital settlement agreement; simple [or complex].”
You MUST fill out and bring to court either Form 4a-311 or Form 4a-312 because the
law requires the court has a document that somehow divides up the marital property in order to
grant a final decree of divorce.
11. If you have children, determine who has custody. New Mexico law presumes that
upon divorce, spouses will have joint custody over children out of the marriage, but not stepchildren (unless they have been legally adopted by the non-biological parent-spouse). Joint
custody means that both spouses will share equally in making major decisions affecting the
child’s life. Therefore, no change regarding an important decision will happen unless both
parents agree to the change in writing or the court changes it.
11
While New Mexico law presumes joint custody, the parties may agree that one spouse
should have sole custody which means that one parent has the right to make all major decisions
affecting the child’s life.
Joint custody does NOT mean equal time-sharing of the child or children. Thus, you
MUST fill out a time-sharing agreement to turn into the court. You may find this “Parenting
plan and child support obligation” form, which is Form 4a-313, online. Please fill it out and
bring it to court with you.
12. If you have children, you MUST fill out a “Child Support Worksheet.” Form 4a-313
also has a section for you to include any child support payments that will be made by either
spouse. Child support in New Mexico is calculated according to the child support guidelines.
The formula is based on the following factors: (1) the gross income of both parties; (2) the
timesharing arrangement; (3) the number of children; and (4) any extraordinary expenses or
circumstances.
Unless the parties agree or the court orders otherwise, each party must complete the
worksheet and serve it to the other party at least five (5) days before trial. However, the parties
may agree to have one spouse complete the worksheet, upon the approval of the other spouse.
You may find an interactive “Child Support Worksheet” online as demonstrated in the
attached guide. This interactive tool is simple and easy to follow and it automatically calculates
the child support amount for you after you enter the required information. Follow the
instructions to fill it out, print it up, and bring it to court.
13. Wage Withholding Order. This order is optional, but strongly recommended. A
wage withholding order requires that the party paying child support agrees that support may be
withheld from his/her wages. This order ensures the money will go to the child and provides
evidence of payment, if the non-paying spouse later argues that child support was not paid. The
wage withholding order form may be found online as Form 4a-341.
14. Spousal Support. Alimony is financial support that one ex-spouse pays to the other
to lessen the financial hardship that may result when a couple separates. If one spouse agrees to
pay the other spouse alimony, please fill out the complex marital settlement agreement form
(Form 4a-312) as that form includes a provision for spousal support.
15. Name change. Please include a provision in your marital settlement agreement or
final divorce decree requesting the court to order that your former last name be restored. For
example, “Petitioner (or Respondent) desires to restore his/her former name of __________.”
16. Realize that the case is not over until the judge signs a final divorce decree. Until
then, you are still married. Make sure you get that final decree signed by the judge and filed
with the clerk’s office. It is worth repeating that you and your spouse are not actually divorced
until the final decree, signed by the judge, is filed with the clerk’s office!! You may find the
form for the final decree online, which is Form 4a-321 (no children) or Form 4a-322 (with
children). Fill it out (the judge will not do it for you) and bring it to court.
17. File all required forms in the clerk’s office and request a court hearing. Once you
and your spouse have gathered and filled out all the necessary forms, i.e., the petition for
12
divorce, the marital settlement agreement, the parenting plan and child support obligation form
(if you have children) and the final divorce decree, go to the clerk’s office of the courthouse, file
all your documents, and request a hearing. The clerk’s office will set a hearing date for you on
the judge’s default day.
Note: You will not actually file the final divorce decree until the judge signs it.
Therefore, you will need to take the original copy of the final decree with you to your hearing. It
is strongly recommended that you also bring copies of the final decree with you to your hearing.
18. The court has continuing jurisdiction over matters of child custody and support.
Although the parties are no longer married once the final decree is entered, the district court
maintains authority over matters pertaining to child custody and support. Therefore, the parents
may come back to court to enforce or modify child custody and support orders.
B. Domestic Violence
Domestic violence, also referred to as family violence and domestic abuse, is actual
violence and threats of violence between people in certain relationships. The types of harms
covered by New Mexico law include: (1) physical harm caused by kicking, hitting, punching,
biting, slapping, or other physical attack, and/or (2) severe emotional distress caused by bodily
injury or assault, threats that cause fear of bodily injury, criminal trespass, or criminal damage to
property, repeatedly driving by a residence or workplace, harassment, or harm or threats to harm
a child.
In addition, to be considered “domestic” violence, the harm must be inflicted by a spouse
or former spouse, partners, current or past boyfriends or girlfriends, family members, including
stepparents, in-laws, children, co-parents, someone in your household, or anyone with whom you
have a continuing personal relationship.
Although you have many options if you are a victim of domestic violence, such as calling
the police or contacting a domestic violence shelter, this guide will only detail how to get help
through the court process.
1. Get a temporary protection order (TPO). This is the first step to receiving long-term
protection. A TPO is a court order that requires your abuser to stay away from you or your
children. The person who requests a TPO is the “petitioner,” and the abuser is called the
“respondent.” To get a TPO, you will need to fill out a short form describing the abuser and
what happened. You may get all applicable forms from your local clerk’s office in the
courthouse. However, these forms are also accessible online at www.nmcourts.gov, as
illustrated by the attached guide. Fill out the petition and turn it into the court clerk. There is no
charge to file the petition.
Typically, the judge will review your petition as soon as possible, but you may have to
wait a couple hours for the judge to sign the TPO. The judge may also want to ask you questions
before signing the order. Once the order is signed, it is good until the judge makes a decision
about a long-term order at a hearing. The respondent will receive notice of the allegations
against him/her and a hearing will be scheduled for no later than ten (10) days after the court
issues the TPO. If the respondent violates this court order, you should call the police.
13
2. Attend the hearing and bring evidence. The purpose of the hearing is to allow the
respondent/alleged abuser a chance to explain his/her side of the story. At the hearing, the judge
will decide if the behavior you described in your petition constitutes domestic abuse under New
Mexico law. The judge will most likely ask both of you what happened. However, your case
will be much stronger if you have some physical evidence to back up your side of the story. If
available, you should bring photos, damaged possessions, medical documentation of injuries,
witnesses of the abuse, etc., to prove your case.
Please keep in mind that it may be wise to get legal advice as soon as possible, especially
if you will be going to court. Normally, it is not necessary to have a lawyer to assist you in filing
for a TPO. However, it may be a good idea to have a lawyer represent you at the hearing for a
permanent order, especially if the respondent has an attorney. A lawyer can help you organize
your case, explain how to subpoena witnesses, and explain how to give evidence in your case.
3. The final order of protection. If the judge decides that the respondent’s conduct was
domestic abuse, the court will issue a final order of protection. The judge decides how long the
final order will last and it could be months or even years. The judge may also make visitation
and child support orders in the best interest of any children involved.
4. For more thorough information about domestic violence, visit www.nmlegalaid.org or
www.lawhelpnewmexico.org.
C. Name Change
In New Mexico, anyone over the age of fourteen (14) may file a petition to the district
court to have his or her named changed or established. If you are under the age of fourteen, your
parent or guardian may file the petition for you.
1. File the petition and schedule a hearing. You must be a resident of New Mexico to
file a petition for a name change. You must also file your petition in the district court of the
county in which you reside. When you file your completed petition in the clerk’s office, they
will set a date for your hearing with the judge. The necessary forms are not posted online yet,
but you may get all required forms from your local clerk’s office in the courthouse.
2. Publish notice of petition. After you file the petition to change your name, but before
your hearing on that matter, you must give notice. This means that you must provide the public
with notice that you are having a hearing to change your name. You do this by publishing notice
of the hearing in some newspaper printed in your county. If your county does not have its own
newspaper, then notice must be published in a newspaper that is printed in the county closest to
the county you live in and that is circulated in your county. Currently, all three counties in the
Fifth Judicial District (Chaves, Eddy, and Lea) have their own newspaper.
The notice must include:
(1) the nature of your petition, for example, that you are requesting a name
change, and
14
(2) the time and place of the hearing the clerk’s office set for you when you filed
your petition.
The notice must be published at least once a week for two consecutive weeks. Sometime
BEFORE your hearing, you MUST get an affidavit from the newspaper, which will serve
as your proof of publication. This affidavit needs to be filed with the clerk’s office and a copy
of the affidavit should be brought to your hearing.
VI.
APPEALS FROM MAGISTRATE AND MUNICIPAL COURT
New Mexico law provides that any party who is aggrieved by the judgment or final order
of the magistrate or municipal court may appeal, as permitted by law, to the district court of the
county within which the magistrate or municipal court is located. The appeals process is
essentially the same for appeals from both magistrate and municipal court and for both criminal
and civil cases. While this guide does not tell you how to handle your individual case on appeal,
it does provide the rules regarding how and when to file an appeal. Of course, once you get to
district court, all the general courtroom rules and rules of etiquette described above will be
applicable. Please note that an appeal to district court means you get a brand new trial!
A. File a notice of appeal with the district court. A notice that you will appeal the
magistrate or municipal court’s judgment or final order must be filed with the district court
fifteen (15) days after the judgment or final order is filed in the magistrate or municipal
court. The proper form, Form 9-607, may be found online at
www.supremecourtlawlibrary.org/mun.htm. The notice of appeal form may also be obtained
from your local clerk’s office in the district courthouse. Please note that you may have to pay a
docket fee when you file your notice of appeal with the district court.
Included in Form 9-607 is a provision that requests a trial setting within six months of
when you file the notice of appeal with the district court. This provision is included for you
because New Mexico law imposes a duty on the appellant to obtain a trial before the district
court within six (6) months of the date of the filing of the notice of appeal.
B. Serve the opposing party with a copy of the notice of appeal. At the time the notice of
appeal is filed in the district court, you must serve the opposing party. This means you must
provide the opposing party with a copy of the notice of appeal. You must file proof of service
with the clerk of the district court that a copy of the notice has been served. The appropriate
form for service of process is included in Form 9-607.
C. File a copy of the notice of appeal with the magistrate or municipal court. You must
also file a copy of the notice of appeal, which has been endorsed by the clerk of the district court,
with the magistrate or municipal court from which you are appealing. In addition, if you had to
pay a docket fee to file your appeal in district court, you will need to provide the magistrate or
municipal court with a copy of the receipt of payment of the docket fee.
AGAIN, PLEASE NOTE THAT THE INFORMATION CONTAINED IN
THIS GUIDE IS GENERAL IN NATURE. IT IS NOT LEGAL ADVICE.
FOR MORE SPECIFIC QUESTIONS, CONSULT AN ATTORNEY.
15