By Susan Buckner, J.D. | Legally reviewed by Susan Buckner, J.D. | Last reviewed June 25, 2024
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New Mexico is one of nine community property states. In community property states, all property acquired during the marriage belongs to the “community.” Spouses divide community or marital property 50/50 during a divorce or legal separation.
The majority of states are common law or equitable distribution states. In these states, courts divide marital assets fairly but not always evenly. Dividing property becomes complicated in an equitable distribution state unless the couple has a prenuptial agreement.
New Mexico community property laws divide all assets and debts in half. The only exception is gambling debts. Under New Mexico law, a spouse is always responsible for 100% of their own gambling debt.
Note: State laws are subject to change through the passage of new legislation, court rulings (including federal decisions), ballot initiatives, and other means. FindLaw strives to provide the most current information available. You should consult an attorney or conduct your own legal research to verify the state law(s) before making any legal decisions.
New Mexico law defines marital property as all property acquired during the marriage by either or both spouses (New Mexico statute § 40-3-8). Marital property includes everything owned by both spouses, such as the marital home or vehicles, but also:
Joint bank accounts and investment accounts
Wages and other income
Real estate and titled property held as tenants in common or joint tenants
Retirement accounts or pension plans
Improvements or appreciation of marital property due to the contributions of either or both spouses
Separate property is everything acquired before marriage. It includes all assets and property owned before marriage and maintained in a separate account, and anything:
Received by gift, inheritance, or devise
Acquired after the finalization of divorce
Set aside in a prenuptial or postnuptial agreement or other written agreement
Community debt has one exception. New Mexico statutes have an exception for gambling debt (New Mexico statute § 40-3-9.1). Judges divide marital debt 50/50, except gambling debt, during the division of assets and debts. Gambling debts remain the separate property of the gambler.
Judges begin by ordering a valuation of all marital property during the division of property in a legal separation or dissolution of marriage. Once there is a value, the judge divides all property as close to equally as possible.
If property can’t be equally divided, like houses or cars, the judge may award it to one spouse. The other spouse may receive property of equivalent value. Alternatively, the judge may order the property sold and divide the proceeds, or they may offer one spouse the option of buying out the other.
In New Mexico, fault, non-monetary contributions, and similar factors are not considered community property. Property division only involves marital and personal property. Issues of child support, alimony, and child custody are separate from property division.
The safest way to protect your property rights is by having a marital settlement agreement before handing the divorce to the judge. You and your spouse should consult an experienced New Mexico divorce attorney when facing divorce or legal separation.
Contact a qualified attorney.
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