New Mexico Prenuptial Agreement Attorney

What is a Prenuptial Agreement?

Also known as a prenup, a prenuptial agreement is a contract between two people who are planning to marry. It determines the distribution of the couples’ property in the event of death or divorce and can establish rules of behavior in financial matters, including what does and does not constitute communal property.

A prenuptial agreement may also include proposed alimony terms, a will that mirrors the prenuptial agreement’s asset distribution clauses, and who receives the benefits of life insurance policies. A valid prenuptial agreement is a written document, signed willingly by both parties, and includes full disclosure of each party’s financial situation.

These agreements are not designed to be comprehensive.  A valid prenuptial agreement does not include:

  • issues involving children, whether of or preceding the marriage, including child custody or child support;
  • a requirement for either spouse to be responsible for the premarital debt of the other;
  • any clause that would require the other spouse to commit a criminal act or civil tort.

Prenuptial agreements are subject to the review and approval of the New Mexico Family Court at the time they’re invoked. The court will set aside a prenuptial agreement if, for example:

  • either spouse can prove they didn’t sign it voluntarily;
  • either spouse defrauded the other spouse by failing to disclose an accurate financial accounting;
  • either spouse would be forced to seek financial assistance from the state.

A qualified divorce attorney is the best way to ensure your agreement withstands legal review. At Sutherland Law Firm, we can help you prepare a prenuptial agreement that will include all the required elements and counsel you on which clauses might invalidate the agreement. Together we can lay the groundwork for a more straightforward dissolution if you and your spouse decide to end your marriage.

Why Should I Create a Prenuptial Agreement?

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.

What is a Postnuptial Agreement?

A postnuptial agreement is similar to a prenuptial agreement, except that the spouses sign it after the marriage. Postnuptial agreements cover the same issues as prenuptial agreements, but it can be a little more challenging to define separate property after the wedding.

A postnuptial agreement could be necessary, even if a prenuptial agreement was signed. If the family’s financial circumstances change in any way, the family needs a new agreement addressing those changes. If one spouse leaves the workforce to raise the children, an agreement should be in place to protect that spouse in the event of a divorce.

An important distinction between prenuptial agreements and postnuptial agreements is that postnuptial agreements can include provisions about child welfare. Parents can include child support, as well as spousal support clauses.  A postnuptial agreement can also address child custody arrangements, as long as they do not deny access to the non-custodial parent.

As with a prenuptial agreement, the validity of a postnuptial agreement is determined if and when the agreement is invoked. Our divorce attorneys at Sutherland Law Firm can draft and negotiate a valid postnuptial agreement for you. Get in touch with our team today at 505-539-3232 to get started.