Going through a divorce can be emotionally exhausting, time-consuming, and financially draining long before property division discussions begin.
Working with a competent legal team can mitigate the stress associated with marital dissolution – especially in New Mexico. Our state, along with only 8 others, has specific laws regarding community or marital property. While equity and contentment are the overall goal of these laws, coming to an agreement about value and distribution can be tedious.
Familiarize yourself with the most commonly asked questions Sutherland Family Law receives about property division in New Mexico. You’ll arrive at your mediations feeling confident in your knowledge, and that of your professional divorce attorneys.
What is property division?
Property division is process of dividing property and assets between ex-spouses during a divorce.
These assets are distributed equally between both former spouses, although the parties may agree on a unique formula under which to divide the properties in question. Once the terms of a property division have been evaluated by a judge and agreed upon by all members, a property settlement is reached.
How does New Mexico handle property division?
New Mexico is both a community property state, and a no-fault divorce state.
While there are exceptions for certain previously owned properties, community property law asserts that all assets acquired during your marriage are owned by both you and your spouse.
In a no-fault divorce state, the misconduct of your spouse is not factored into property divisions during your divorce proceeding. This includes economic misdoings, so even if your spouse improperly handled funds, it is not taken into consideration during the property division process.
How are property divisions enforced?
Upheld by the court system, any party found not complying with the terms of a property settlement can be held in contempt of the court.
If your ex-spouse is not honoring the terms of this court order, contact a family and divorce lawyer in your area as soon as possible.
What is considered community or marital property?
Typically, the first community properties to be addressed are the home and any other physical properties, including land.
Personal assets are also considered, like artwork, furniture, jewelry, vehicles, and the like. Beyond the tangible, financial assets are divided as well: income, benefits, dividends, stocks, vested pensions, life insurance, retirements, money in bank accounts, and debts.
Marriage dissolutions can quickly become complicated when it comes to determining ownership. Some can be classified as separate property if they were acquired by one spouse prior to the marriage date, or even partial community property depending on how you and your spouse contributed to them.
If you owned your marital home before your wedding day, for example, separate ownership can be transmuted into community property over time through your spouse’s mortgage payments, refinancing, or improvements that increased the home value.
Is anything separate from community property?
Despite having strict and detailed laws surrounding property division, you can still maintain sole ownership of some assets after getting a divorce.
As long as you can backdate and provide verification of your ownership, your asset will be considered separate property. Inheritances and gifts, whether acquired before or during the marriage, typically retain their sole ownership with proper documentation.
How do you prove separate property ownership?
While it might not have crossed your mind to preserve ownership documentation during your marriage, it does end up playing a vital role in divorce transactions.
If an asset you owned separately or prior to the marriage is important to you, it is your responsibility to provide evidence of your sole ownership. For an inheritance, you must show that it was intended for your use only.
Evidence can range from documents of purchase or certification, to testimonies on your behalf. If verified by the court, your ex-spouse will not be awarded any part of the property, though it may be factored into alimony arrangements.
How is alimony affected by property division?
Alimony, or spousal maintenance, is financial support given from one spouse to another during a separation or divorce.
Whether you worked during your marriage or were a homemaker, your spouse could be required to pay an alimony to ease your transition into single-income living or supporting yourself. Though alimony requirements are not technically a part of the property division process, the court can, at any time, require one spouse to set aside separate property to cover the spousal maintenance payments.
How does debt influence property divisions?
Unfortunately, if your spouse accumulated debt during your marriage, it belongs to both of you. Considered a community property, all debt will be divided equally between you and your ex-spouse equally, just like other tangible and intangible assets.
This includes debts you might not have been aware of, like credit cards, cash loans, or secret purchases of any kind.
Like properties and assets, however, some debts are considered to be separately owned by only one spouse. Gambling debts, for example, remain under the sole ownership of the spouse that incurred them. Other debts considered to be individually owned include debts accumulated before the marriage, or while in a period of separation.
What types of support are not factored into property division?
Wrongdoings, economic or otherwise, are not factored in, and neither are monetary contributions to your spouse’s education or personal development. Non-monetary contributions, like homemaking, household chores, and child rearing, are also excluded as valueless during the property division proceedings.
As you begin evaluating your marital property, work directly with an experienced divorce attorney to determine the particularities of other secondary investments that could be distributed between you and your ex-spouse.
How do you determine value of property assets?
Value is, of course, incredibly subjective. In divorce mediations, determining the actual and personal value of assets is a large part of the property division process.
Luckily, a judge will oversee and determine equitability of the distribution, so no overvaluing tactics will be permitted. Before you step into the mediation setting, however, work with a local divorce attorney to outline your priorities, and call in an expert for complicated evaluations.
If spending time with your children is more important to you than the monetary properties, for example, you might choose to take a lower value vacation property over the savings accounts. Or, if it’s determined that your spouse is keeping your family home, you can expect to be compensated with the other available assets, like jewelry, cars, and artwork, until an equal value arrangement is met.
Can a prenuptial agreement affect property division?
Yes, a valid prenup that contains a property division agreement will take precedence over the community property laws in New Mexico.
A prenuptial agreement is legally binding and established prior to the marriage, so finances, properties, and asset ownership is determined long before the divorce proceedings.
Are common law marriages affected by property division regulations?
Common law marriages are not recognized in New Mexico, regardless of time spent living collectively, joint investments, or the number of children you had and raised together. Marital estates, community property, and shared assets do not factor into separation proceedings unless it is after the legal wedding date and part of a divorce procedure.
How do you find expert guidance for the property division process?
The intricacies of property division during a divorce in New Mexico can be overwhelming, and you don’t want to leave your most loved assets and properties unprotected.
The trusted attorneys on the Sutherland Family Law team are ready to help you move through the conflict confidently, and begin your new life as soon as possible. Contact us today to find the expertise you need to navigate your marriage dissolution quickly and discreetly.