All states provide a statutory basis for the dissolution of marriages by their courts. The basis for dissolving a marriage will vary from state to state. In the State of New Mexico there are four statutory grounds for divorce. One of the four grounds for divorce is what is typically referred to as the no-fault provision and the other three require a finding of fault by the other spouse. The relevant portion of the statute reads: “…, a district court may decree a dissolution of marriage on any of the following grounds: A. incompatibility; B. cruel and inhuman treatment: C. adultery; or D. abandonment.”
“Incompatibility” exists when there is such discord or conflict of personalities that the legitimate ends of the marriage relationship have been destroyed preventing any reasonable expectation of reconciliation. This provision is typically referred to as the no-fault provision. In other words, if one party testifies that from their perspective that the parties are incompatible, a judge may grant a divorce. Experience dictates that a party presenting contrary testimony that the parties are compatible will not be able to defeat the petition for dissolution. The very fact that the two parties have differing views on whether they are incompatible appears to support the proposition that they are “incompatible.”
As to the remaining three grounds B, C and D, a party who makes any of these allegations must prove the grounds by a preponderance of the evidence. In the area of adultery, it is sometimes very difficult to prove actual “sex outside of marriage” without an admission of one of the parties or “being caught in the act”. Cruel and inhuman treatment is also fraught with some difficulties where there are mild behavior patterns or interaction between the spouses that constitute acts of emotional, verbal, psychological, social abuse, etc. Such behavior in marriage without further physical evidence, may not constitute cruel and inhuman treatment. Abandonment may be one of the easier to prove since clearly one party has chosen to leave a marriage and most often cannot be found for service of the petition.
Most divorces are filed under grounds of “incompatibility” or the no-fault provision even where there may be an indication that one or more of the fault provisions are present. There can be some very clear advantages and disadvantages in choosing your grounds for filing a divorce action and each situation is very different. You should consult an attorney before deciding which ground or grounds for dissolution of your marriage are best for your factual situation.