In the State of New Mexico, if the parties to a marriage are unable to divide their marital property and debt on their own, then the court must do so using a community property scheme of division. Community property specifically refers to any income, assets or debt that is accumulated during the marriage and shared equally by the parties. This does not include property or debt that was acquired before the marriage. It also excludes property that was purchased during the marriage using separate assets or debt that was obtained for the exclusive benefit of separate assets.
During the property division phase of a divorce, New Mexico courts will only divide community property. Specifically, they begin said process by presuming that all of the marital income, assets and debt are community property. If a party wishes to exclude something from the division process, it must prove by a preponderance of the evidence that it is separate. They may do so through the use of either documentary or testimonial evidence which must establish when the property was received and how the parties treated it during the course of the marriage. Keep in mind that New Mexico is a “no fault” divorce state, meaning that one party cannot be awarded more property than the other due to alleged marital misconduct. While this may seem unfair to some, it is the law.
In light of the above, if you wish to avoid litigation and negotiate an agreement with your spouse over your marital assets, income and debt, there are several steps you can take to protect yourself and your property. In essence, the following can help you avoid the hassles associated with litigating over separate versus community property.
- Make sure to identify all of your separate property.
For instance, if you received a family heirloom as an inheritance or some other item of value, make sure to segregate it from the rest of your property before you initiate the divorce process or as soon as possible. Also be sure to keep a journal of all of your separate property so that if there are any questions raised later on, then you can refer to your records for clarification.
- Be ready to provide proof of your entitlement to certain property.
If you were individually left money or property through a will or trust, it is crucial to keep a copy of these documents. In other words, if a conflict arises over the ownership of a certain piece of property, being able to produce said documents may help resolve the matter in your favor.
- Take an inventory of all of your separate property before removing it from the marital home.
Compile a list of all of your separate property and take pictures of everything before removing it from the marital home. This way, you have accounted for your property and may substantiate your separate ownership of same should a problem arise at a later time.
- Educate yourself as to your legal rights and responsibilities regarding your marital home.
Keep in mind that both you and your spouse, unless there is a domestic abuse order or some other court ordered restriction in place, have the right to enter the marital home and take your property. Therefore, neither you nor your spouse can prevent one another from entering the home, such as by changing the locks.
- Make sure to keep tabs on any property currently in your spouse’s possession that you will receive post-divorce.
Meaning, if your spouse is currently using property that will distributed to you after your divorce is finalized, make sure that there is no balance owed on the property or any liens attached thereto. You certainly do not want to obtain property that has become the associated with a significant amount of debt. Keeping an eye on the property can avoid this potential problem.
The above information is designed solely to illustrate general principles of law, and does not constitute a specific legal opinion on individual cases. We suggest that you contact experience legal counsel for a specific opinion tailored to your individual circumstances.
Although this article may have addressed some of your questions and concerns, it is only meant to provide you with an overview of the law and does not qualify as legal advice. As such, we urge you to contact qualified legal counsel to review all of your legal options. Contact our office today at (505) 989-8117 to schedule a free, confidential consultation.
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