Who gets what after a divorce or after a spouse's death?

Well, the answer largely depends on what state you live in. Most states in the country are actually common law states. New Mexico on the other hand, along with only 8 other states, is a community property state. This can actually greatly impact how assets are divided in your divorce. That's why it's so important you understand the basics before making major decisions like getting married, filing for divorce or creating a will.

What does Common Law or Community Property Mean? 

Common Law/Community Property refers to how a state determines what happens to marital property after a divorce (the property acquired during marriage). Most US states are considered common law states. That means that for most of the country, property acquired by one spouse during the marriage is owned completely and solely by that person. That being said, if both names of the couple are on the title or deed to a piece of property, then that property would be divided equally. Upon the death of one of the spouses, their separate property is distributed according to their will, or according to probate (in the absence of a will). This makes the way the spouses determined ownership during the marriage (ie. Joint Tenancy vs. Tenancy in Common) very important. 

Map of community property states in the US

In New Mexico, Louisiana, Arizona, California, Texas, Washington, Idaho, Nevada, and Wisconsin all property acquired during the marriage is considered community property, meaning it is owned by both spouses equally. Community property includes all earnings, property bought with those earnings, and all debts accrued during the marriage. Community property begins at the marriage and ends when the couple officially starts the divorce process. When one spouse passes away, his or her half of the community property passes to the surviving spouse. Their separate property can be devised to whomever they wish according to their will, or via probate without a will. Generally speaking, the longer the length of your marriage, the more community property you will have. Basically, unless you inherited something, anything earned or bought during the marriage will need to be split evenly. 


How Does Community Property Impact my Albuquerque Divorce?

New Mexico’s Community Property laws mean that any earnings or debts originating before or after the period of marriage will be considered separate property. Everything earned or bought during the marriage will have to be split 50/50.  Separate property that was significantly enlarged or enhanced during the marriage can also be considered community property. However, property that was given to or inherited by one spouse during the marriage remains separate property. Sometimes, one spouse uses separate property to either purchase or maintain a home. However, if there is a mortgage on the home, whatever was paid during the marriage would be considered community property, even though one spouse may have a separate property stake in the home. That stake would need to be calculated. Likewise, the length of your marriage can also impact the amount of community property that needs to be divided.  As we mentioned, longer marriages usually have more complex property division issues than shorter-term marriages. As you can see, determining ownership and interest can be pretty tricky. 

Every case is different, so if you want to know what you or your spouse are entitled to in the event of a divorce, contact Albuquerque's best divorce lawyers to set up a consultation now or find tons of other great information in our family law library page. If you need help with your divorce or custody case, call our divorce lawyers at 505-317-4455 or chat with someone online now.

Anthony Spratley
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Experienced Divorce, Child Custody, and Guardianship Lawyer Serving Albuquerque and Beyond