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Divorce or Separate, That is the Question.

What is the difference between a legal separation and a divorce?

The short answer? Very little.

The process to legally separate or to obtain a divorce are virtually identical. Both processes require filing a petition, assessing your marital assets and debts, dividing said assets and debts, working out parenting plans if you have minor children, and receiving a final declaration from the court as to your separation or divorce. Spousal support and child support are also available for either option.

So why do many pursue a legal separation when a divorce is just as good if not better? Some choose to avoid divorce for religious or other reasons. Others may feel that divorce is too finite and a separation will accomplish their goals. It is important to consider however, the implications of each option to see which fits best for you and your partner. Your tax burden may increase dependent on which avenue you choose. For example, single filing status may be more beneficial to you but is not available if you are legally separated. Your option for filing status would be to file “married filing separately,” which assesses a different taxation rate and may not be best for you.

Timing of your legal separation or divorce is important too. New Mexico is one of the few states that operate as a Community Property state. This means that income derived from either spouse during is considered the income of both spouses, with a few caveats of course. Many people are intimidated with the process in dissolving their marriage and choose to forgo the process completely. This is a huge no-no! That’s because community property remains so until the date of legal separation or divorce. Therefore, even if parties no longer live together or act as spouse and spouse, income is still considered community property and is subject to 50/50 division with the other spouse.

When deciding which route is best for you, you may consider speaking with an attorney versed in your state's family laws. Each state carries their own laws regarding the valuation and distinction of property so it is critical that you know what factors are relevant to your marriage. Sunshine Legal prides itself in providing knowledgeable, efficient representation in marriage dissolution. Call or email to speak with an attorney today.


This blog discusses only general information about family, elder, estate planning, or probate law in New Mexico and is not legal advice. No information derived from can create an attorney-client relationship. No attorney-client relationship exists unless there is a signed writing by the client and Sunshine Legal or representative.

Sunshine Legal LLC

3321 Candelaria Rd NE Albuquerque, NM 87107

PO Box 52013 Albuquerque, NM 87181

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Proudly assisting New Mexicans in FamilyElder, and Estate Law.


3321 Candelaria Rd NE

Albuquerque, NM 87107 

(P) 505-750-3685

(F) 505-672-7774


PO Box 52013 

Albuquerque, NM 87181 

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 Established 2018 by Sunshine Legal LLC.