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Understanding the Legal Requirements for an Enforceable Prenuptial Agreement in New Mexico

If a couple elects to draft a prenuptial agreement, they must be careful with the terms and language used in the agreement to ensure that it is unambiguous and legally enforceable.  The New Mexico legislature adopted the Uniform Premarital Agreement Act in 1995, so the agreement must comply with the requirements and terms of this act.  The basic requirements for a prenuptial agreement are as follow:

  •  Written Document: The terms of the prenuptial agreement must be set forth in writing.
  •  Fairness: A New Mexico court may determine that a prenuptial agreement is unenforceable if it is grossly unfair to one of the parties.  This subjective determination can most easily be avoided by ensuring that both parties are individually represented by a New Mexico attorney who can advise them of their rights and negotiate on their behalf.  This will also help mitigate any potential claims that either party was forced to execute the agreement under duress.
  •  Appropriate Subject Matter of Agreement: While New Mexico law permits competent, consenting adults to enter into whatever contractual arrangements they wish to construct, there are certain topics that should be addressed specifically within the context of a prenuptial agreement, such as:
    • Allocation of rights to acquire, sell and encumber property;
    • Ownership and distribution of proceeds under insurance policies;
    • Designation of state law that will govern the agreement;
    • Rights and obligations regarding income and other property both in the present and the future;
    • The preparation of a will and/or power of attorney;
    • Distribution of property or debts upon death or marital dissolution;
    • Any other issues that do not contradict public policy.
  • Disclosure Requirements: Both parties have a legal obligation to make disclosure of assets and debts prior to entering into a premarital agreement.  This disclosure is another safeguard to ensure fairness between the two financially disparate parties.
  • No Quid Pro Quo Condition: The marital agreement cannot be used to solidify a wedding day as a quid pro quo tradeoff for agreeing to enter into marriage.

While the requirements for a valid, enforceable premarital agreement may seem fairly straightforward, there are many potential pitfalls and traps that can lead to devastating consequences.   For this reason, it is critically important to obtain the advice of qualified legal counsel.

 The above information is designed 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.  We offer complementary consultations in our centrally located offices in both Santa Fe and Albuquerque, and are available to evaluate your complex family law issues and explain your options. We handle the full spectrum of property division issues, including the division of retirement plans. Call us today to schedule your free consultation at (505) 989-8117 to learn about your rights.

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