One of the first concerns most people have when they start the divorce process is how they’re going to protect their assets from being divided with their soon-to-be ex and how to avoid taking over their partner’s debt. In New Mexico, community property law dictates how this is done and can either help or hinder your side of the process, depending on your circumstances. In this article, we’ll discuss what community property is and how it will affect you in your separation.
What is a Community Property State and is New Mexico One?
The phrase “community property” refers to all the assets that were gained during the course of a marriage. This also includes any liabilities (i.e.: debts) that were also accrued, with there only being a few exceptions. Basically, anything purchased or acquired by either partner during their legally defined marriage is considered community property.
In the United States, there are only nine states that have community property laws and New Mexico is one of them. While these laws appear simple on the surface, they can get very complex, and unless you have an Albuquerque divorce attorney on your side, community property can be a tricky thing to navigate alone.
What’s Included & What’s Excluded in Community Property?
Community Property laws apply to anything and everything accrued by you and your partner during your marriage. This includes things as small as a $100 credit card balance and things as large as real estate. While it may seem like these laws are strict and don’t allow for much wiggle room, there are exceptions that may work to your advantage. These include:
- Anything accrued prior to your marriage date
- Anything gifted to you during your marriage
- Any inheritance received by either partner during your marriage
- Any gambling debt accrued by one spouse
Student loans and debts incurred by one spouse exclusive can sometimes be an exception. Consulting with an Albuquerque divorce attorney will be the best route to protect yourself during your divorce if you have concerns about what is community and what is separate debts or assets.
What Happens When Your Partner Kept Secret Assets or Debt?
Unfortunately, community property laws do not necessarily differentiate between assets or debts kept secret by one partner. For instance, if your partner opened a credit card early in your marriage then maxed out the limit and never paid it down, any remaining debt from that card would be considered community and you may be on the hook for paying it off. Conversely, assets obtained in secret are nevertheless community and the fact that you were unaware of assets does not mean you are not entitled to a portion of their value.
Courts are able to decide who should be responsible for debts incurred during marriage and one partner incurring secret debt can be a pursuasive argument for why the party who incurred the debt should be solely responsible. It can get complicated, however, where collection efforts are already underway. If you are facing a situation where secret debts have been incurred or are currently being incurred, it is important to speak with an attorney.
How Does a Prenuptial Agreement Affect Community Property?
If you and your ex put together and agreed to a prenuptial agreement prior to getting married, then those terms will likely act to supersede any applicable community property laws. However, there may be defenses to enforcing a prenuptial agreement and if certain types of assets or debts were not discussed in the agreement, they can be subject to community property.
Does Anything Else Affect the Terms of Community Property?
In other states, you may be able to go through a process similar to divorce to divide your property if you’ve lived with your partner for a certain amount of time and have commingled finances or purchased property together. In the state of New Mexico, there is no such thing as a common law marriage.
While this would typically mean that community property terms extend to before the date you signed your marriage license, New Mexico doesn’t recognize this process, so your community property only begins on your marriage date. If you accumulated assets or debt for the ten years you dated before tying the knot, then those do not count toward your community property and, in most instances, would be considered your separate property.
Wherever you are in your separation process, keep community property in mind and know that there are things you have every right to exclude from the shared marriage property. If you have any concerns or want someone in your corner to fight for you, contact the Law Office of Dorene A. Kuffer and chat with our tenured team of Albuquerque divorce attorneys to safeguard yourself and protect assets in your divorce.