In the event of a divorce, there will be some question as to who is entitled to what property and assets as well as who is responsible for the liabilities. New Mexico is a community property state. The state holds that property obtained during the marriage is presumed to be owned jointly and that the marriage partners were equals. The property is divided down the middle, with each getting half. Valid prenuptial agreements may effect this division allocating certain assets and debts differently. Separate property is property held by a party prior to marriage as well as gifts or inheritances, regardless of when they are received. Additionally, there may be separate claims against community assets and/or community claims against separate assets.
We will help you become familiar with your rights and ensure that your interests are protected. Whether you’ve been married one day or one year, we’ll help you determine the best course of action.
Interim (Temporary) Division of Income & Expenses
Interim division of income and expenses is mandated by statute (NMSA 1978 §40-4-3) and rules (NMRA 1-122 and 1-123). The rules mandate that community income and fixed monthly expenses between the parties be equally divided until the parties are divorced by the court. This is done only after a petition has been filed. The parties must provide documentation of their monthly income and fixed monthly expenses. A hearing may be held on the issue and the judge will issue a ruling that reflects what he or she believes the division should be until the parties are divorced.
Divorce and Bankruptcy
As with assets, liabilities are considered to be shared by divorcing partners in New Mexico. If one partner files for bankruptcy after divorce, the other will become the focus of creditors. Recent changes in the laws are designed to prevent one spouse from leaving the other with marital debts by filing bankruptcy. The new law does not allow the discharge of debts that one partner agrees to pay in a divorce settlement. The exception to the rule would be if payment of the debt would cause the ex-spouse to suffer hardships.
Bankruptcy does not affect the payment of child support and spousal support. These payments must continue. If a former spouse receives a bankruptcy notice in the mail regarding a debt the other spouse was assigned in the divorce, the non-bankrupt party must seek competent bankruptcy counsel immediately as strict timelines are imposed to preserve the non-filing party’s rights.