New Mexico Divorce: Dividing Property

Find out how New Mexico state law determines division of assets (and debts) during divorce.

By , J.D. · Golden Gate University School of Law
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If you are getting divorced in New Mexico, do you know what property you get to keep and what you will need to split with your spouse? And who will be responsible for any marital debt?

Community Property

New Mexico is a community property state. This means that any property that belongs to the marriage must be split equally between the spouses when they divorce. Likewise, all debts incurred during the marriage (with the exception of gambling debts) belong to both spouses equally.

If you don't think an equal split of the community property is fair, you can work with your spouse on a distribution that suits both of you better. In a marital settlement agreement, the spouses tell the court how they want their property divided. You could decide, for example, to keep the house while your spouse takes the stock account, and for you each to keep your respective retirement accounts and the car you each usually drive. Even if this leaves an unbalanced result – say you've been contributing to your retirement plan longer and drive a sporty Mercedes while your spouse drives a Honda – the court will usually accept this type of written agreement without further involvement. On the other hand, if you can't work with your spouse, or if there are certain items of property you can't agree on, then the court will tell you how to divide your property.

Presumption of Community Property

Once the court is involved, it will need to know which of your property is separate property, which is community property, and how much there is of both. Separate property is property you acquired before marriage or after your divorce. It also includes gifts or an inheritance you received during marriage, as well as any property identified as separate by the spouses in a written agreement. New Mexico law defines community property as all property acquired during marriage that isn't separate property. Any profits or rents made off of community property belong to the marriage. On the other hand, if your separate property makes money, then that belongs to you alone.

The court divides only the community property. It must begin, however, by presuming that all property held by either spouse during marriage is community property. If you want to exclude something from the division, then it is up to you to prove by a preponderance of evidence that it is your separate property. Proof generally means providing information (a document or testimony) on when you received the property and how you treated it during marriage. For a gift or inheritance, you may need to show that it was intended only for you.

Property proven as separate remains in the hands of the original-owner spouse. The court can't award any part of it to the other spouse, but it could set it aside for spousal maintenance (alimony) or the benefit of minor children. All property not excluded must be divided equally.

The types of property divided at divorce are real property like the family home, personal property like jewelry and clothing, and intangible property like income, dividends, benefits, and even debts. Debts are treated the same as assets. They must be characterized as separate or community property and divided accordingly, except for gambling debts. Even if you incurred a gambling debt during marriage, you alone remain responsible for it.

Separate Property May Satisfy Spousal Maintenance

Spousal maintenance (also known as alimony) is a payment from one spouse to the other to help sustain the recipient spouse after divorce. The court may use separate property to satisfy maintenance payments. It also has discretion to order installment or lump sum payments for a variety of purposes and periods of time. If you were a homemaker during marriage, for instance, the court can order your spouse to make payments for your training or education to increase your ability to earn money. On the other hand, if you worked during marriage but relied on your spouse's income as well, then the court could order your spouse to pay maintenance that can help you transition to supporting yourself.

In New Mexico, maintenance payments are not included in the division of property. At any time, however, the court can set aside the separate property of either spouse to cover maintenance payments. The court will look at a set of factors to determine your need for maintenance, including the length of the marriage, each spouse's age and health, and your efforts to become self-supporting. The court also evaluates your available resources, such as your current income, earning capacity, assets, and liabilities. Additionally, the court will consider the lifestyle you enjoyed during marriage, and whether you need insurance coverage for yourself or for children, among other factors. Ultimately, any award for maintenance must be reasonable and just based on your needs and your spouse's ability to pay.

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