Everything that happens in a lawsuit is governed by either a statute or a Rule.
Statutes are the laws passed by the legislature. They apply to specific situations, including divorces and parentage cases. Case law is the law that is made when an appeals court interprets and applies a statute to a particular situation.
The state Supreme Court establishes the rules for the state judicial system.
The Rules of Civil Procedure govern how a case proceeds: how it’s filed, how the parties are notified that someone has filed something, how to get relevant information from the other side, etc.
The Rules of Evidence govern what a judge or hearing officer can hear in court, and how it’s presented in court.
If you are representing yourself, you will be expected to be familiar with, and follow, the Rules of Civil Procedure and Rules of Evidence. In effect, you are both your own lawyer and your own client. You will be expected to know both the law and procedures as they apply to your case. There are no special rules for self-represented people! The same rules that apply to lawyers apply to you.
You can find the Rules and statutes at the Supreme Court Law Library, corner of Don Gaspar and Alameda. They’re open Monday – Friday from 8 a.m.-5 p.m. Or find them online. The law librarians can help you find Rules, statutes, forms, and other information, but they can’t give you legal advice.
The Rules of Civil Procedure and the Local Rules tell you exactly what the process is for filing a lawsuit. Be sure to study the Rules before you file a case, or before you respond.
A lawsuit is opened by filing a “Petition for …” or “Complaint for…”. Click here for more information about how to open a case.
“Filing” means a document is given to the Court Clerk to put in the court’s record. Documents that are filed are called “pleadings”. You can tell that a pleading has been filed if it has a stamp in the upper right corner of the first page of the pleading. The stamp says the name of the court, and the date and time it was filed.
In general, “Petitions” open family law cases – cases categorized as “DM” when they are filed. For instance, a divorce case is started by filing a “Petition for Dissolution of Marriage”.
The person who files a Petition is called the “Petitioner” and the other party is called the “Respondent”.
“Complaints” open civil cases – cases categorized as “CV” when they are filed. For instance, a debt collection case is started by filing a “Complaint for Breach of Contract and Money Due”.
The person who files a Complaint is called the “Plaintiff”, and the other party is called the “Defendant”.
The Petitioner or Plaintiff must have the Respondent or Defendant personally “served” with the Petition or Complaint and a Summons. The most effective way to accomplish “Personal service” is to put a copy of the filed Petition or Complaint directly in their hands. The person who hands the copy of the Petition or Complaint cannot be the Petitioner or Plaintiff, and must be over 18 years old. You can also serve a Petition or Complaint by certified mail, return receipt requested. If you use this method, be aware that service is NOT completed until the Respondent or Defendant picks up their mail and signs for it. The case CANNOT proceed until service is complete. That's why handing the Petition or Complaint to them is the best way to serve them. Personal service cannot be completed in any way other than hand-delivery or certified mail.
After the Respondent or Defendant is served, a form called a “Return” has to be filed. The Return says the date when the Respondent or Defendant was served. The Court has no way of knowing that the Respondent or Defendant has been served until the Return is filed.
Click here for more information about service. The legal requirements for service are set out in NM Supreme Court Rule 1-004.
After a Petition or Complaint is served, the Respondent or Defendant will have 30 days to file an Answer. Nothing will happen in your case until this time has passed! Judges will almost never act without giving both sides an opportunity to present their side. But you must respond within the allowed time, or the other side can request a default judgment.
If the Respondent or Defendant does not file an Answer or some other pleading that tells the court that they want to have a chance to tell their side, the Petitioner/Plaintiff can file for a “default judgment”. That means that they tell the court that Respondent/Defendant was served so they know about the case, but no response to the Petition/Complaint has been filed, so the Petitioner/Defendant should get what they asked for in their Petition/Complaint. There are Rules that say how to go about asking for a default judgment.
After the case has been opened, whenever either party wants to ask the Court to do something, the request MUST be in the form of a written Motion that tells the Court what they want and why. You must file your Motion at the Court Clerk’s Office. The person who files a Motion is called the “Movant”.
Do not try to talk to the judge or hearing officer in private! He or she cannot talk to one party without the other party having notice and the chance to be present, and a court reporter to make a record. All your interactions with the judge or hearing officer will be in the formal setting of a courtroom, in “hearings”, which are governed by the Rules of Civil Procedure and Rules of Evidence.
You MUST provide a copy of anything you file to the other party or their lawyer. You can hand deliver it, mail it, fax it, or email it. You must note on your pleading when and how you delivered it to the other party. This is called a “Certificate of Service”.
If one side files a Motion asking the Court to do something, the other side always has a chance to respond. They do this by filing a “Response to Motion to….“ There are time limits for responding to Motions. Check the Rules of Civil Procedure to find out how to file a motion and how long you have to respond to a Motion filed by the other side.
After a Response is filed, the person who filed the Motion or Request (the “Movant”) may file a Reply. The Rules of Civil Procedure also say how long the Movant has to file a Reply.
If you ask the Court to do something by filing a Motion and the other side objects by filing a written Response to the Motion, the Court may decide the issue based on the written pleadings (the Motion and the Response, and the Reply, if one is filed), or the Court may set a hearing so that both of you may present your side.
If you want to make sure you have a chance to talk to the judge to present your side and not just rely on the written Motion, you must file a Request for Hearing along with the Motion. If the judge decides to have a hearing, you will receive a Notice of Hearing that sets the date and time that you MUST appear.
If you receive a Notice of Hearing for a Motion that you filed, and you do not appear, the Court may cancel the hearing and dismiss your Motion.
If you receive a Notice of Hearing for a Motion that the other side filed, and you do not appear, the Court may give the other side what they’re asking for – which you probably don’t agree with, or they wouldn’t have filed a Motion to get a court order for it!
If you have received a notice of hearing you must be prepared to present all your evidence about that issue on the day of the hearing. Bring copies of your written evidence (exhibits) and provide them to the other party before the hearing. Study the Rules of Evidence to learn how to present your evidence in the hearing.
If you need a witness to help you prove your side, you may request the Clerk's Office to issue a subpoena for that witness. The Sheriff's office may serve subpoenas for you. You should consult with any witnesses you wish to testify for you before you arrange for a subpoena.
The Rules of Civil Procedure govern subpoenas and witness fees. Expert witnesses such as doctors, psychologists or accountants may require advance payment of fees.
The information on this website is not intended as legal advice, and does not substitute for seeking independent legal advice regarding the handling of a lawsuit or related legal matters.