Couples who are planning to marry should also plan their marriage– including the end of it, whether by death or divorce.
Maintain control of your assets
In the same way that the New Mexico Probate Court takes over when someone dies intestate (without a will), the New Mexico Family Court decides the distribution of assets in a divorce where there is no valid prenuptial agreement. Spouses with a valid prenup retain control over many aspects of the marriage, including how the divorce will be handled.
Ensure financial stability for your children
If either spouse has children, a prenuptial agreement will guarantee that the spouses have agreed upon the financial welfare of the existing children in advance of the marriage. Whether the children are dependents or adults, if the parent’s wishes are formalized in a valid agreement, there will be no question after the divorce or death of how those children will be treated.
Keep asset division equitable
Under New Mexico family law, when a couple divorces without a prenuptial agreement, the distribution of property is based on a communal law standard. Assets acquired during or as a result of the marriage are owned by both spouses and must be divided equally.
Property that was owned by either spouse prior to or subsequent to the marriage, plus any income from any of that property, is called separate property. Separate property includes gifts and bequests to either spouse during the marriage.
Before getting the state involved, the married couple has the opportunity to create a divorce settlement agreement, in which they ask the court to divide the communal property as they have agreed between themselves.
If the division seems fair, even if it’s not exactly equal in value, the court will generally agree to the requested division. For example, each might agree to keep their cars, or one keeps the family home and the other a country home or city apartment.
If there are disagreements over the distribution of assets, the court will take over. Without a prenuptial agreement, this could mean the loss of a beloved car, a home, or a retirement fund built over a long career.
In a situation where this is a second divorce, it can be even more complicated, especially when children are involved. Knowing in advance how assets will be divided can make the divorce process a little easier for all parties.
Avoid assuming responsibility for debt
Debts are treated the same way as assets with one exception. All debts incurred prior to or subsequent to the marriage are considered separate. Most debts incurred during the marriage are considered communal. The exception to the communal debt is gambling debt. If either (or both) spouse has gambling debts, those debts remain the sole responsibility of the person who incurred that debt.
Our team can guide you through all the legal aspects of your marriage. We will help you create a prenuptial agreement that is fair and equitable to both parties—and that the court will accept. If you find yourself in need of guidance for dissolving the marriage, please contact us as soon as possible for a legal separation, if necessary.