New Mexico Divorce Property Division

What the Law Says

New Mexico is one of 9 community property states — property acquired during the marriage belongs to both spouses. On divorce, the community estate is divided equally unless a specific exception applies. Property owned before the marriage, gifts, and inheritances generally stay with the original owner.

New Mexico is a community property state under the Community Property Act: property acquired by either or both spouses during the marriage that is not separate property is community property (N.M. Stat. Ann. §40-3-8), each spouse owns an equal undivided interest, and the community is divided equally on divorce. Property acquired out of state that would have been community had the spouse been domiciled in New Mexico is treated as community (quasi-community) property when both parties are New Mexico domiciliaries. Debts are separately classified — community debt is any debt contracted during the marriage that is not separate debt, and gambling debts are the separate debt of the spouse who incurred them (§§40-3-9, 40-3-9.1). Separate property, owned before marriage or received by gift, bequest, devise, or descent, is not divided.

Division Factors (N.M. Stat. Ann. §40-3-8)

What New Mexico courts weigh:

1. Separate property: acquired before marriage or after entry of a dissolution decree; acquired after a §40-4-3 separation decree; designated separate by judgment or decree; acquired by gift, bequest, devise or descent; or designated separate by written agreement of the spouses, including joint-tenancy/tenancy-in-common designations (N.M. Stat. Ann. §40-3-8(A))
2. Community property: property acquired by either or both spouses during marriage which is not separate property; property acquired by written instrument in both names is presumed community (§40-3-8(B))
3. Quasi-community property — out-of-state acquisitions that would have been community if the acquiring spouse had been domiciled in New Mexico — is treated as community property in a dissolution when both parties are New Mexico domiciliaries (§40-3-8(C)-(D))
4. Property includes the rents, issues and profits thereof (§40-3-8(E))
5. Debts are statutorily classified: community debt is any debt contracted by either or both spouses during marriage that is not separate debt; gambling debts are the separate debt of the spouse incurring them (§§40-3-9, 40-3-9.1)
6. Division of property incident to dissolution proceeds under the §40-4-7 framework, with security devices (e.g., life insurance to secure an equalized property division) available under §40-4-7.1

Common Questions