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.
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.
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.
Researching Separate Property
You may be able to find some relevant case law through a research service like LexisOne.