In a divorce, the court will divide any assets or property considered “marital property." There are two many ways states divide marital property: community property and equitable distribution. New Mexico, like most of the Southwestern states, uses the community property legal system. However, prenuptial agreement and other legal agreements or court orders can change how marital property is split after a divorce.
What Is Considered Marital Property in New Mexico?
Although New Mexico is a community property state, that doesn’t mean everything is split exactly in half in a divorce. Community property is basically anything that isn’t considered separate property that was acquired by either or both spouses during a marriage. Property acquired as tenants in common or as joint tenants will be presumed to be held as community property unless the separate property definitions or a writing says otherwise. Community debt is whatever isn’t separate debt.
To complicate matters further, there’s also “quasi-community property," which is all real or personal property wherever it’s located, that isn’t separate property and that was acquired by either spouse while living elsewhere which would’ve been community property if acquired while living in New Mexico at that time OR real or personal property exchanged for while living in New Mexico. Quasi-community property is treated as community property if both parties live in New Mexico at the time of divorce or legal separation.
What Is Considered Separate Property and Debt in New Mexico?
New Mexico law defines “separate property” as any property that was:
- Acquired by either spouse before marriage or after entry of a decree of dissolution of marriage or legal separation
- Designated as separate property by a valid judgment or decree of any court or written agreement, including a deed designated property as owned as joint tenants or tenants in common being separate property
- Given to or inherited by either spouse
In addition, the parties may have separate debt meaning debt:
- Contracted or incurred by a spouse before marriage or after the divorce or legal separation decree is entered
- Designated as a separate debt of a spouse by a judgment or decree of any court
- Identified by a spouse to the creditor as separate debt in writing at the time of taking on the debt
- Coming from a tort committed by a spouse before marriage or after divorce or was a separate tort committed during marriage
- Incurred by one spouse by gambling
- Incurred by one spouse while living apart and the debt didn’t contribute to the benefit of both spouses or their children, if declared unreasonable by the court
The following table further explains aspects of New Mexico’s marital property laws.
|New Mexico Statutes Chapter 40: Domestic Affairs, Article 3: Property Rights
|New Mexico is a community property state.
|Dower and Curtesy Abolished
|The traditional legal concepts of dower and curtesy have been abolished in New Mexico, as they have in most states. Dower was a life estate in her husband’s property that a wife was entitled to after his death. Curtesy was the same, but for a man of his wife’s property, and only if they had a child capable of inheriting the property.
If you’re considering getting divorced in New Mexico, you should talk to an experienced local divorce lawyer first. It’s important to understand your rights to marital property and community debts. Although it may be the most amicable way to end the marriage, negotiating your own property settlement agreement with your spouse or in mediation, may result in unnecessarily waiving your rights to some property or assets.
Knowing what marital property rights you are giving up, but choosing to do so anyway, will lead to a more confident and comfortable divorce proceeding. If you discover you should’ve owned or received something long after the divorce, there may be nothing you can do and you could become quite upset.
Note: State laws change frequently; contact a lawyer or conduct your own legal research to verify these divorce laws.
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