Prenuptial Agreements in New Mexico

An overview of the requirements for prenuptial agreements in New Mexico.

By , Attorney

Prenuptial agreements are nothing new, but they are becoming more common than ever. As divorce rates are rising, couples today want to be prepared as they enter a marriage, just in case things don't work out. A prenuptial agreement can provide security during marriage as well as surety in the event of death or divorce.

The rules for prenuptial agreements can vary from state to state. It's important to understand the requirements in your state before entering into a premarital contract. This article provides an overview of prenuptial agreements in New Mexico. If after reading this article you have questions, please contact a local family law attorney for advice.

What is a Prenuptial Agreement?

A prenuptial agreement is sometimes referred to as a "premarital agreement" or "prenup". In New Mexico, a prenuptial agreement is a written contract made by two individuals before they marry. An agreement may address rights and responsibilities during marriage as well as property division and alimony upon death or divorce. A prenup must be signed by the future spouses to be enforceable. Moreover, an agreement won't take effect unless the couple follows through with their wedding plans.

Who Should Get a Prenuptial Agreement?

Whether you're young or old, rich or poor, you may want to consider getting a prenup. A prenuptial agreement isn't for couples that think they'll get divorced. Instead, a premarital contract can offer financial security during marriage or protection in the future. An individual may want a prenup to keep his or her money separate or to preserve a family business. Moreover, an agreement outlining who owns what property can simplify property division if divorce does happen.

A prenuptial agreement allows a couple to set the rules in a divorce, rather than a judge. Some individuals want a premarital contract for tax considerations or to preserve a child's inheritance. When two individuals marry, assets or property owned separately by one spouse can become subject to division in a divorce proceeding. Because of these kinds of property laws, many individuals may want a premarital contract to keep control of money or property that they've worked hard to earn.

What Does a Prenuptial Agreement Cover?

A prenup can cover virtually anything that would be decided during a divorce trial. Typically, prenuptial agreements will address one or all of the following issues:

  • each spouse's right to property owned separately or as a couple
  • how assets are divided in the event of death or divorce
  • each spouse's right to buy, lease, sell or transfer or otherwise control property during the marriage
  • the distribution of assets and debts in the event of death, divorce or separation
  • whether either spouse will pay alimony to the other, including how much and for how long
  • the preparation of a will to carry out the terms of the agreement
  • whether each spouse is entitled to death benefits from the other's life insurance policy
  • the state law which governs the agreement, and
  • any other issue the couple agrees upon.

Although, prenuptial agreements delineate rights and responsibilities during marriage and upon death or divorce, there are limitations. For example, a prenuptial agreement can't require a spouse to commit a crime or force one spouse to repay the other's premarital debts. Moreover, a premarital contract can't resolve issues involving children.

Can a Prenuptial Agreement Resolve Child Custody and Child Support in New Mexico?

No. Provisions of a prenuptial agreement that address child custody or child support will be thrown out. Child support belongs to the child and parents can't infringe on this basic right. Moreover, the incomes of parents may be very different at the time a couple marries versus when that couple divorces. Thus, child support can't be calculated prematurely in a prenuptial agreement. Instead, like custody, child support must be decided at the time of separation or divorce.

For a judge to approve a custody agreement, he or she must find that the agreement is in the best interests of the child. Although parents can reach custody decisions on their own in the course of a divorce case, prenuptial agreements can't resolve custody. A child's best interests must be evaluated at the time of a custody proceeding, not before. Any provisions in a prenuptial agreement that attempt to decide custody aren't enforceable and will be ignored by a judge.

Will a New Mexico Court Enforce My Prenuptial Agreement?

New Mexico has adopted the Uniform Prenuptial Agreement Act (UPAA), like the majority of states. The UPAA streamlines prenuptial agreements and sets forth requirements that every agreement must follow.

Prenuptial agreements in New Mexico must abide by basic contract principles. Foremost, any prenup must be in writing and signed voluntarily by both spouses. An oral prenuptial agreement won't be upheld. Additionally, both spouses must be at least 18 years old and of sufficient mental capacity to enter into an agreement. If a marriage is declared void, any prenuptial agreement entered into by the couple will be void as well.

A prenuptial agreement won't be enforced if one spouse can prove that:

  • he or she didn't sign the agreement voluntarily
  • the agreement was severely unfair (unconscionable) when it was signed; and before signing the agreement
    • the defrauded spouse wasn't provided a full and accurate picture of the other's assets and liabilities
    • the defrauded spouse didn't voluntarily waive in writing his or her right to disclosure of the other spouse's finances, and
    • that spouse could not reasonably have had adequate knowledge of the other spouse's finances.

Spouses can agree to terminate alimony through a premarital contract. However, a spouse who seeks state financial assistance following a divorce because he or she was deprived alimony under a prenup, can have the alimony portions of the agreement set aside. A prenuptial agreement doesn't have to divide assets equally, but it can't leave one spouse destitute.

Prenuptial agreements can be complicated and sometimes difficult to understand. However, it's essential to know your rights and responsibilities before signing a prenup. If you have additional questions about prenuptial agreements, contact a local New Mexico family law attorney for advice.

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