In New Mexico, property acquired during a marriage is generally considered community property. This means that:
- It’s divided 50/50 between spouses in the event of a divorce (unless there are unusual circumstances).
- If you’re in another state and move to New Mexico, your non-community property will become community property.
What is the community property presumption?
The community property presumption is the assumption that all property acquired during a marriage is community property, unless you can establish otherwise. In other words, it’s assumed that all property you acquire during your marriage belongs to both of you. This includes things like income and business assets, as well as real estate and personal items.
A couple can rebut this presumption by showing that their separate funds were used to pay for the purchase of either a home or motor vehicle that was transferred into joint names after they separated but before divorce. It’s also possible to show that they were living apart when certain assets were purchased by one spouse alone (like clothing or jewelry).
Are there exceptions?
There are three exceptions to the community property presumption:
- Property acquired before marriage
- Property acquired by gift or inheritance during marriage, or from a third party during the marriage (the spouse doesn’t have to contribute any money towards its purchase)
- Separate property that has been transformed into community property (for example, you could buy an apartment building with your separate funds, but if you live in it with your spouse and it becomes “community property,” then it’s treated as such).
What about debts?
- Debts incurred during the marriage are community debts
- Debts incurred prior to the marriage are separate debts
- Debts incurred after the marriage are separate debts
Is all property considered community property in New Mexico?
In New Mexico, only property acquired during your marriage is considered community property. This includes assets that you and your spouse acquire together as well as gifts or inheritance received by either spouse during the marriage.
In case you’re wondering, assets acquired before your marriage are not considered community property unless they were commingled with other joint funds and then used to purchase an asset that remains part of the community estate after the divorce.
For example: If John married Jane in June 2000 and lived with her for 10 years until their divorce in 2010, all his assets that he had prior to their marriage would remain his own after their separation; however, any assets purchased with money earned from him working during those 10 years would be considered community property since they were acquired while he was still married (and therefore legally related).
What is separate property in New Mexico?
Separate property is anything that was acquired before the marriage and includes gifts, inheritances and anything purchased with separate funds. Separate property does not include property acquired during the marriage such as a house or car. Property acquired during a marriage is classified as either community or divisible assets depending on when it was purchased and whether both parties had access to those assets. If a spouse can prove that he/she did not have equal access to assets, these items will be classified as divisible and subject to distribution in divorce proceedings.
Can a couple convert community property into separate property?
It is possible! The process, called partition and distribution of community property, involves the court dividing up community assets and distributing them to each spouse. This can be done for a number of reasons: one party wants to keep all or part of their assets separate; the parties agreed in their divorce settlement that certain assets would be designated as separate property, or the court may order partition and distribution if it finds that community funds have been mismanaged by one spouse.
In order to have an asset converted into separate property, there are strict time frames set by law — usually within 90 days after filing for divorce — during which you must ask the court for permission first (there’s no point doing this until you’re sure you want it). If there is already a final judgment against your spouse for financial misconduct related to his/her behavior during marriage (such as spending money without consulting you), then this step might not apply because your request will automatically be granted without needing any additional paperwork filed with courts or other officials involved with making decisions about finances during divorce proceedings… but there’s still one more thing needed before things get finalized: we’ll talk about that next!
Is there a way to determine whether a particular asset is separate or community property?
There are two primary ways to determine what is separate property and what is community property. First, a judge will look at the factors set forth in NM Statute 40-4-1(A) to make the determination. If there is no evidence that an item was purchased with community funds, it may be deemed to be separate property and subject to division as such. The judge will also consider the intent of the parties when they acquired an asset as well as their actual use of assets during the marriage (or civil union), including payments made on behalf of children born during the marriage (or civil union). For example, if you received a gift from your parents during your marriage (or civil union), this may have been given to them knowing that it would benefit only yourself and not necessarily both spouses (or partners).
If you are divorcing in New Mexico and have community property, it is important to know what is considered separate and what is considered community. The divorce process can be very complicated and if you don’t understand the law, mistakes could be made that could cost you or your spouse a lot of money. It is always best to speak to an experienced New Mexico Attorney when going through this process so that we can ensure your rights are protected throughout the entire divorce proceeding.