The marital property you own during your marriage will be subject to property division at the time of divorce. As a community property state, New Mexico courts generally divide marital property equally between the two spouses. However, the parties have the chance to work out property division between each other before the courts do. Whether you and your spouse want to agree on how to split marital property, or you need to let the judge make the call, having a knowledgeable family law attorney is critical.
Matteucci Family Law understands all aspects of New Mexico’s domestic laws, including marital property division. Bob Matteucci, a division of marital property attorney, can provide legal counsel that is tailored to your specific needs and can work with you throughout the divorce process.
What does community property mean?
Any physical property that the spouses acquire with community funds during a marriage – which is known as “community property” – will need to be divided if they later divorce. That includes the house, land, furniture and electronics, vehicles, and even family pets and other personal property. This property will be split equally between the spouses unless they can reach a settlement agreement otherwise.
The division of marital property will also be controlled by any prenuptial or postnuptial agreements that the parties signed before their divorce. In a case like this, a court will only step in if the validity of the agreement is somehow in dispute. Otherwise, these agreements can dictate the financial aspects of the divorce, including property.
“Community property” does not include separate property. Under New Mexico’s family laws, separate property is defined as the following:
- Property that was owned by either spouse before the marriage
- Depending on the circumstances, property acquired during the marriage that the spouses agree is the separate property of one of the spouses
For the last item, the spouses should have the agreement in writing to avoid any disputes later. Courts won’t divide separate property but will distribute it to whichever spouse owns it.
How do courts divide marital property?
New Mexico domestic courts initially assume that any property acquired during the marriage is community property. It doesn’t matter whose name appears on the property. For example, if after marriage you bought the marital residence with community funds and had it deeded only in your name, it may still be considered community property. That means it is subject to the equal division described above. A spouse that believes property is separate has the burden of proving this to the judge.
The court will assess the total value of the community property and split it evenly between the spouses. One spouse may be given the marital residence, for instance, while the other is given other property, such as vehicles or another piece of land, to balance it. Correctly assessing the value of marital assets, especially more valuable ones, is critical to ensuring you get the share that you deserve. A skilled New Mexico family law attorney will know how to do this.
Can separate property become community property?
As mentioned above, separate property is not included in the court’s division of marital assets. However, separate property (or a portion of it) can become community property through a process called commingling.
Commingling occurs when separate property is mixed with community property in a way that makes it difficult to distinguish the two. For example, if you owned a house before the marriage, it is generally considered separate property. But during the marriage, community funds (e.g., money from a joint bank account) or labor (you and your spouse doing renovation work on the house) can transform the enhanced value of the property, or a portion of it, into community property.
The other spouse must prove that the community funds or labor increased the value of the otherwise separate asset. If you have separate property that you want to keep separate during the divorce, discuss the specific financial aspects of the asset with your attorney.
Does fault play a role in property division?
New Mexico is a no-fault divorce state, which means fault, misconduct, and misbehavior are not considered grounds for obtaining a divorce. The same applies to the division of marital property. Even though one spouse may believe the other was responsible for the breakdown of the marriage or committed some other wrong, the court won’t consider this as a basis for giving one spouse more or “better” property.
Many spouses find it difficult to accept this. To exact revenge on the other spouse, they attempt to drag out the divorce and make it unnecessarily painful and expensive. Fortunately, the parties have options for handling the division of marital property outside of court.
Mediation, Collaborative Divorce, Attorney Negotiations and Property Division
In mediation, the parties hire one attorney as a neutral mediator. The attorney does not represent either party but mediates between the parties to negotiate the different aspects of their divorce, including property division. The mediator cannot decide for the parties but will help them realistically value the property and divide it in a way they’re both happy with.
Collaborative divorce is an option for spouses who want to work together amicably to end their marriage. It is focused on the mutual benefits of both spouses, rather than who wins or loses. Transparency, openness, and respect are hallmarks of the collaborative approach.
In a large majority of cases, the parties’ attorneys negotiate a settlement without having to go to court.
Contact a New Mexico Property Division Attorney
Matteucci Family Law knows that how marital property is divided will have a substantial impact on your long-term financial and personal goals. If attorney negotiations, mediation, or collaborative divorce are options, or if litigation is necessary, Bob Matteucci can represent you.
A New Mexico family law attorney can work with you through the challenges that come with property division and divorce. Contact Bob Matteucci today to schedule your confidential consultation.