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Is separate property upheld in New Mexico

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  • 05-17-2005, 03:53 PM
    mmartinez
    Is separate property upheld in New Mexico
    In practice, do divorce courts in community property states such as New Mexico uphold the separate property right in cases where an individual is careful not to mingle it with marital assets? For example, a spouse has a separate bank account prior to marriage, and does not touch it during marriage. The individual does not contribute funds to it, nor withdraw funds from it.

    Thanks.
  • 05-17-2005, 05:09 PM
    aaron
    Separate Property in New Mexico
    It is wise to enter into either a prenuptial agreement, or at least a formal, written itemization of separate property, before marriage. New Mexico respects separate property, but unusual facts can come up, or a judge may decide that the equities justify considering the separate asset when assessing spousal support. Also, issues can arise if the marital debts exceed the liquid assets and the equity in the marital home.

    So if the individual is not yet married, it may be wise to consult a New Mexico lawyer about a prenuptial agreement.
  • 05-17-2005, 05:30 PM
    mmartinez
    NM separate property
    Aaron,

    Would a post nuptial agreement be as effective as a prenuptial?

    MM
  • 05-17-2005, 05:37 PM
    aaron
    New Mexico Post-Nuptial Agreement
    New Mexico statutes (e.g., NMSA Section 40-4-7.2. Binding arbitration option; procedure) and case law (e.g., In re Salopek, 107 P.3d 1 (2005)) suggests that New Mexico does honor post-nuptial agreements. However, it is wise to have such an agreement drafted by a lawyer, to make sure that it is valid and enforceable.
  • 05-17-2005, 05:37 PM
    mmartinez
    NM separate property
    Aaron,

    Can you give an example of the "unusual facts" that you talk about? Also, is a post-nuptial agreement as effective as a pre-nuptial in this matter?

    MM
  • 05-17-2005, 05:48 PM
    mmartinez
    NM property
    Aaron,

    Based on what you've seen from your experience, what is the typical stance a divorce judge takes when looking at an individual that has a separate bank account? Or is it all over the map?

    MM
  • 05-17-2005, 09:37 PM
    aaron
    Separate Bank Account
    It really depends upon the circumstances - and I'm not sure that my Michigan experience would have much applicability in New Mexico.
  • 05-18-2005, 10:23 AM
    mmartinez
    NM Property
    Thank you.

    MM
  • 05-19-2005, 12:43 PM
    mmartinez
    NM Property law
    Aaron,

    Do you have examples of case rulings from NM where the separate property right was upheld despite a claim from one of the spouses?

    MM
  • 05-19-2005, 12:56 PM
    aaron
    Researching Separate Property
    You may be able to find some relevant case law through a research service like LexisOne.
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