Form 4A-100. Domestic relations forms; instructions and cautions regarding use of forms.

A. Short title. These forms, compiled as Forms 4A-100 through 4A-403 NMRA New Mexico Rules Annotated set and form number, as in “Form 4A-____ NMRA.” B. Mandatory acceptance of forms by district court. The New Mexico Supreme Court has approved these Domestic Relations Forms for use in domestic relations actions by self-represented litigants and attorneys appearing in the district courts. As provided by Rule 1-120 NMRA, these forms supersede conflicting local district court domestic relations forms and shall be accepted by the district courts. C. Responsibility of self-represented parties. A self-represented person shall abide by the same rules of procedure and rules of evidence as lawyers. It is the responsibility of a self-represented person to determine what needs to be done and to take the necessary action. A self-represented person involved in a divorce proceeding may need the advice of an attorney or other appropriate professional during the process and is responsible for finding an attorney or other appropriate professional for advice or representation. (1) All notices from the court will be mailed to you at the last address on file with the court. If you move, you must file a Notice of Change of Address so that you receive your mail from the court. (2) Rule 1-005 NMRA requires that you provide a copy of anything you file in court to the other party on the same day you file it. This is what the Certificate of Service confirms. D. Definitions. The following definitions apply to the terms used in the Domestic Relations Forms: (1) “contested divorce proceeding” means a divorce proceeding in which the parties cannot reach an agreement on one or more decisions that must be made to finalize a divorce, including but not limited to the division of property, debts, spousal support, child custody, time sharing, visitation, or child support, and therefore are unable to file all of the required forms at the same time; (2) “creditor” means a person, agency, bank, or business to whom a debt is owed; (3) “custody plan” means Form 4A-302 NMRA, which sets forth the type of legal custody and includes a parenting plan, when required by law; (4) “debt” means separate or community debt as defined in Section 40-3-9 NMSA 1978. Debt is an amount of money owed to a creditor that may include, but is not limited to: loans (signature, car, school, payday), mortgages, credit card balances, balances owed on bills (utilities, phone, cell phone, cable television), and federal and state tax bills. The party whose name is on the debt may not be the only party responsible for payment of the debt; (5) “default” means the process to get relief from the court in the form of an order when a party fails to respond or defend a case (either party is subject to a default judgment for failure to respond). See Rule 1-055 NMRA for more information; (6) “dissolution of marriage” means a divorce; (7) “divorce proceeding” means the judicial process used to get a divorce; (8) “minor child” means a child who is under eighteen (18) years of age and who is the child of both parties to a divorce. For the purposes of support only, a child who is under the age of nineteen (19) and attending high school full time may be considered a minor child; (9) “parenting plan” means a plan as defined by Section 40-4-9.1 NMSA 1978, setting forth the responsibilities of each parent individually and the parents jointly in a joint custody arrangement. For an example of a parenting plan, see Form 4A- 302(II)(B) NMRA; (10) “party” means a spouse named in a divorce proceeding; (11) “petition for dissolution of marriage” means the document that requests a divorce; (12) “petitioner” means the first party named on a petition for dissolution of marriage. This person is referred to as a “petitioner” solely for purposes of identifying the parties in the court system; (13) “property” means the types of property the parties to a divorce may own, including community, separate, or quasi-community as defined in Section 40-3-8 NMSA 1978. Property includes, but is not limited to: homes, land, livestock, cars/vehicles, furniture, savings and checking accounts, retirement accounts, jewelry, inheritances, tools, and art. The name of the party on the title to the property may not be the sole owner of the property. Questions about whether property is separate or community should be referred to a private attorney or the court, as appropriate; (14) “respondent” means the second party named on a petition in a domestic relations proceeding; (15) “service” or “service of process” means having a person eighteen (18) years or older, who is not a party to the action, give papers to a named party in a case by personally handing the paperwork to the person, or having the papers delivered to a named party in a case by some other way as described in Rule 1-004 NMRA; (16) “summons” means a notice to the respondent that a lawsuit has started. The summons notifies the respondent to respond to the divorce petition within the specified deadline. The summons is a two-part form. On the first part, the summons has information about the court, names and addresses of the parties, the deadline for a response, and notice that a default may happen for failure to respond. The second part of the summons is the return. The summons is served on the respondent. Once the respondent is served, the return must be filled out by the person who did the service of process and signed by that person with a notarized signature. When the original summons, including the return, is completely filled out and signed, the petitioner is responsible for filing it with the district court. The summons form is Form 4-206 NMRA. Filing the completed summons and return lets the court know that the respondent has been served; (17) “summons packet” means a copy of the summons (Form 4-206 NMRA), petition for dissolution of marriage (Form 4A-102 or 4A-103 NMRA), temporary domestic order (Form 4A-201 NMRA), and a blank copy of the Domestic Relations Information Sheet (Form 4A-101 NMRA). See Paragraph E below for more information. The summons packet is served on the respondent; (18) “temporary domestic order” means an order issued by the court when a divorce proceeding is filed that instructs the parties on how to conduct themselves regarding interactions with each other, finances, children, and property until the divorce is final. The temporary domestic order is Form 4A-201 NMRA; (19) “time sharing and order for support and care of children” means one or more orders of the court to include a parenting plan as defined in Paragraph L of Section 40-4-9.1 NMSA 1978 containing the duties of the parents of minor children relating to child custody, time sharing, visitation, and support, including support of a child under nineteen (19) years of age who is attending high school; (20) “uncontested divorce proceeding” means a divorce proceeding in which the parties are in complete agreement as to all the decisions that must be made to finalize a divorce, including but not limited to decisions regarding the division of property, debts, spousal support, child custody, timesharing, visitation, and child support, and present the following required forms, completed and signed by both parties, for filing at the same time: (a) Without children. If the parties do not have minor children, the following forms must be filed in an uncontested divorce proceeding: (i) Domestic relations information sheet, Form 4A-101 NMRA (ii) Petition for dissolution of marriage (without minor children), Form 4A-102 NMRA; (iii) Marital settlement agreement, Form 4A-301 NMRA; and (iv) Final decree of dissolution of marriage (without minor children), Form 4A-305 NMRA. (b) With children. If the parties have minor children, the following forms must be filed in an uncontested divorce proceeding: (i) Domestic relations information sheet, Form 4A-101 NMRA; (ii) Petition for dissolution of marriage (with minor children), Form 4A- 103 NMRA; (iii) Marital settlement agreement, Form 4A-301 NMRA; (iv) Custody plan and order, Form 4A-302 NMRA; (v) Child support obligation and order, Form 4A-303 NMRA, with attached child support worksheet as described in Section 40-4-11.1 NMSA 1978; and (vi) Final decree of dissolution of marriage (with minor children), Form 4A-306 NMRA; and (21) “wage withholding order” means an order that requires child support to be withheld from the wages of the named parent. E. STARTING THE DIVORCE PROCESS; CONTESTED. These are the first forms that must be filed with the court. When starting this process, each spouse must be named as a party on the forms. One spouse is the petitioner and the other is the respondent. The spouse starting the lawsuit is the named petitioner. The other spouse is the respondent. The claims or rights of either party are not determined on the basis of being named as the petitioner or respondent. See Paragraph F of this rule for instructions on completing forms and next steps after these forms are filled out. In a divorce proceeding, the case is started by filing the following completed forms with the court: (1) Domestic Relations Information Sheet. Form 4A-101 NMRA shall be submitted to the court in all cases. This form is used to provide the court with essential information about the parties to the divorce proceeding, such as addresses, social security numbers, dates of birth, and the names and ages of the children of the parties. Although this form is required to be turned into the court, it is not a public record and is not part of the court file; and (2) Divorce Petition (Petition for Dissolution of Marriage). Depending on whether there are minor children of both parties, one of the following two forms are used to request a divorce: (a) Form 4A-102 NMRA is used if the parties do not have any minor children together; or (b) Form 4A-103 NMRA is used if the parties have minor children together. (3) Summons. The Summons Form is Form 4-206 NMRA. The petitioner must complete this form. When the petitioner completes the contact information, the court will fill in additional information to complete the summons and return the original summons to the petitioner. A copy of the summons shall be served on the respondent as part of the Summons Packet. See Paragraph J of this rule for serving the Summons Packet. It is the responsibility of the petitioner to file the original summons with a completed return with the court. (4) Temporary Domestic Order (TDO). The TDO is Form 4A-201 NMRA. Each judicial district has different procedures about who provides the standard form and how a TDO is issued. Some courts provide the form when the lawsuit is filed and others require the party starting the lawsuit to complete the form. Check with the court where you are filing your lawsuit to find out if you need to bring a TDO form with you. The contents of the TDO form shall not be changed by any person. The form requires only the completion of the court caption on the first page. If the court where you are filing your lawsuit does not issue its own TDO, bring additional copies of the TDO with you when filing your lawsuit. F. Completion of forms. When filling out any forms, please do the following: (1) Type or print. You must type or print all of the information required to be completed on forms filed with the court. If there is not enough room on the form to provide all of the information required, add a separate page for the information and include the page with the rest of the form before making copies and filing the form with the court. Your handwriting should be clear and easy to read. (2) Signing the forms and other papers. Your signature on a form or other paper filed with the court means the following: (a) you have read and understand the form or paperwork; (b) the information provided by you on the form is factually correct to the best of your knowledge; and (c) the information in the paperwork is accurate and true. Some forms may need to be signed in front of a notary public and notarized. G. Required number of copies to file with the court. After completing and signing any required forms, take the original and two copies of each form to the court clerk for filing. The clerk will file the originals and return stamped copies to you. One copy is for you, and you must provide the other copy to the other party. H. Pay the filing fee. A filing fee must be paid to the court clerk in cash or money order at the time the divorce case is opened. A divorce case is opened by filing a domestic relations information sheet, divorce petition, and summons. If you cannot afford to pay the filing fee, you may ask the court to allow you to file for free or a reduced rate by filing an application for free process. The application for free process is Form 4-222 NMRA. I. Filing the first forms with the court. After completing the Summons Packet, take the original and two (2) copies of each completed form to file in the district court. The court clerk will sign and stamp the original summons and give the original and two (2) copies of it back to you with a copy of your filed divorce petition so that a copy of the summons can be served on the respondent. The clerk may also give you two (2) copies of the TDO or will endorse (stamp) copies of a TDO provided by you. One copy of the temporary domestic order must be served on your spouse as part of the summons packet. J. Serving the summons packet. (1) After a divorce petition and summons and TDO are filed with the court, copies of all papers must be served on the respondent. This is known as service of process. (2) The summons packet and any other documents the clerk instructs you to serve may be served on the respondent by hand-delivery by a person who is over the age of eighteen (18) and is not a party to the divorce proceeding. The petitioner cannot be the person who serves the respondent. Have someone deliver the summons packet to the respondent as required by Rule 1-004(F) NMRA. It is the sole responsibility of the petitioner to have the summons packet served on the respondent and to provide proof that the service was completed. The court is not responsible for serving documents on any party. (a) If you and respondent are not living together and you know the respondent’s current mailing address, the summons packet may also be served by certified mail, return receipt requested. If served by certified mail, the respondent must sign a receipt indicating that he or she received the summons packet for service to be completed. The return receipt from the certified mailing must be filed with the district court. (b) There are other ways of serving the summons packet on the respondent. Read Rule 1-004 NMRA to learn more about those methods. (c) Service of process may be done by a private process server, law enforcement, or any other person who is over eighteen (18) and not a party to the lawsuit. You may have to pay a fee to someone to do the service of process for you. Check with your local law enforcement or look in the phone book for resources for service of process. (3) If you cannot find the respondent after reasonable attempts to find him or her to serve the summons packet, you may file a motion with the court asking permission to serve the summons packet by publication in a newspaper. If you need to serve the summons packet by publication in a newspaper, use Forms 4-209 and 4-209A NMRA. (4) After successful service on the respondent, the petitioner is responsible for making sure that the original summons with the completed return is filed with the court to prove that the respondent was served. K. Responding to the petition. In a contested divorce proceeding, the respondent must file a written response to the divorce petition. Form 4A-104 NMRA may be used to respond to the divorce petition. The response must be filed with the court and a copy mailed to the petitioner within thirty (30) days after the summons packet was served on the respondent. Failure to file a response to the divorce petition within the thirty (30) days can result in serious consequences, including entry of a default judgment against the respondent. L. Issues not addressed by the forms. The Domestic Relations Forms may not address all domestic relations issues relevant to you. The forms address only the most common divorce issues. If there are issues that are not addressed in the forms, you are responsible for bringing those issues to the attention of the court or you should seek the assistance of an attorney. You may need to get other forms that are not provided in these rules to finish the transfer of property, businesses, etc. For example, the forms do not include the following: (1) federal and state tax treatment of income, expenses, and deductions both before and after a divorce, or as a result of a child support order, for claiming children as dependents, or for paying or receiving alimony; (2) how to transfer title to property or assets; (3) how to divide a business or retirement income; (4) how to divide or transfer other complicated assets; or (5) how to divide or transfer debts. M. Keeping Records. Any party to an action should make copies of all documents, paperwork, or forms filed with the court for his or her own records. N. Paying Creditors. These forms, including the final decree of dissolution of marriage, do not change the legal responsibility of the parties to pay their creditors. O. Role of judge, clerk, and court. Court clerks can only help you with filing forms with the court; they cannot help you complete them. The judge makes decisions in your case, but neither the judge nor the judge’s staff can give advice to either party, including how to fill out the forms. If you need assistance or have questions about how to complete the forms, you may seek help from an attorney. The court clerks may give you information about resources for legal assistance. See Rule 23-113 NMRA, which provides more guidance on what information and assistance court staff may give to self- represented litigants. You may also want to use your local library to get information about the forms or legal citations in these rules, which may include internet searches of New Mexico court websites (www.nmcourts.gov) and the New Mexico compilation commission (www.nmcompcomm.us).