ven diagram including separate property and assets

During a divorce, there are many questions that need to be resolved and issues that need to be addressed including custody, timesharing, assets, debts, and property. Oftentimes people acquire property during a marriage such as a family home, cars, investments and retirement accounts, so during the divorce process these assets and more need to be addressed and divided. New Mexico is a community property state, however many states enforce separate property laws. In situations where property is bought before or after a marriage, even during a marriage in some instances, that property is considered separate property. Marital property can be converted into separate property rather easily, but proving that something is separate property and not marital property when purchased during a marriage is difficult. 

 

What Is Considered Separate Property in New Mexico? 

Generally speaking separate property is any type of property that was purchased before or after a marriage. Any property purchased during a marriage is automatically considered marital property. During a marriage separate property may come into existence if and only if it was bought with funds from only one person. Proving this is a difficult but not impossible task. Say you have a savings or investment account that were established prior to marriage and you then purchased property during the marriage with those funds, that is considered separate property. Additionally, if you earned property during a marriage by inheritance or gift that is also considered separate property so long as your spouse is not included in said inheritance or gift. 

 

What Is The Difference Between Community Property And Separate Property?

Community property is typically any type of property purchased during a marriage. In most cases property, assets such as cars and houses, and debt are acquired between both spouses during a marriage making these community property. Furthermore, income from wages, salaries, self-employment, or investments are categorized as marital property as well. In community property states, property bought during a marriage must be divided fairly among the parties.There are a few expectations regarding community property such as anything purchased before or after marriage, as well as anything gifted specifically to one spouse or inherited during the marriage. This is known as separate property and may be distributed differently after a divorce. With proper evidence, sole ownership is granted to the spouse who purchased that property in any of the special circumstances listed before. Additionally, other subjects included in separate property are gambling debt and student loan debt. However, if gambling winnings were made using community property, those winnings would be considered community property. These are more complex so different rules apply, that's why it's always best to consult with a New Mexico divorce attorney who is experienced in property division. 

 

When Does Separate Property Become Community Property?

Property may change from being separate property to community property rather easily. It is important to understand that anything purchased during a marriage is automatically considered community property even if that property was once separate property. For example, if you go into a marriage while buying a house and say it is not paid off yet and it is now being paid with a joint account, that then becomes community property. 

 

Is New Mexico A 50/50 Divorce State? 

During the divorce process the way that property is divided depends on which state you live in. Only nine states including New Mexico are community property states, and the rest are common law states. In a community property state any property acquired during the marriage is to be divided equally among both spouses. Common law states recognize community property as any property acquired while the two parties are living together, married or not. In New Mexico, community property which is also known as “martial estate,” begins accumulating only once the couple is married, no matter how long the parties have been together. 

 

How Can A Prenuptial Agreement Secure My Separate Property? 

When entering a marriage, speaking about a prenuptial agreement can be very beneficial especially when multiple assets have already been acquired by one or both parties. If you want to protect your assets during the marriage and prevent contention if something were to end the marriage, it may be in your best interest to create a prenup. 


The divorce process includes many underlying and complex disputes including property. In order for your assets to be assured after a divorce you need divorce lawyers who have your best interest in mind. If you are going through a New Mexico divorce and are unsure of how your property can be divided, you can count on Genus Law Group to look after your best interest during this process. Please contact us at (505) 317-4455 or chat with someone online to schedule a consultation.
Anthony Spratley
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Experienced Divorce, Child Custody, and Child Support Lawyer Serving Albuquerque and Beyond