New Mexico Prenup

Congratulations on your upcoming wedding in New Mexico! You’ve picked a beautiful state with so much to offer, from adobe and art to delicious green chiles and exciting white water rafting.

But why should you consider a prenuptial agreement, what should you include and exclude for New Mexico, and how can you make it uniquely yours? Let’s dive in…

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New Mexico Prenuptial Agreement Basics

In New Mexico, prenups are referred to as “premarital agreements,” but they mean the exact same thing as a prenuptial agreement–a contract you sign with your future spouse before getting married. Prenups are enforceable in New Mexico and can be a great way to align expectations before marriage, protect assets, and provide peace of mind to anyone getting married.

Are prenups valid in New Mexico?

Yes, prenuptial agreements are valid and enforceable in New Mexico, provided they are crafted with a comprehensive understanding of the state’s law. It’s crucial to be aware that a New Mexico court will not endorse certain categories of provisions, including those related to child support or spousal support. On the other hand, provisions regarding property division, inheritances, wills, insurance, choice of law, and any other provision not in violation of public policy are acceptable.

How to create a valid New Mexico Prenup

For an “adobe” prenup to be enforceable in New Mexico, it must be drafted under specific guidelines that include:

Requirements

Put the contract in writing
Make sure both parties sign the prenup (HelloPrenMake sure both parties sign the prenup (HelloPrenup recommends signing your initials on each page, too!)
Make sure the prenup is notarized
Both spouses sign the prenup voluntarily (i.e., NOT out of duress, undue influence, or some other type of force)
The prenup does not include any clauses that are against public policy

Cannot include:

Provisions regarding child support, child custody, or visitation matters
Provisions regarding spousal support (this is very important as New Mexico is one of few states that does not allow spouses to waive spousal support at all. This means you have to leave it up to a court to decide in the event of a divorce.)
No unconscionable terms (i.e., extremely unfair or against public policy) may be included
No unlawful terms may be included

Do I need an attorney for my New Mexico prenup?

Hiring an attorney is not a prerequisite to a valid prenup in New Mexico. There is no New Mexico statute that requires legal representation for a valid prenup. However, New Mexico case law suggests that the presence or absence of an attorney may be a factor that the court looks at in determining the enforceability of the contract. For example, in the Lebeck v. Lebeck case, a wife unsuccessfully challenged a prenup her husband drafted himself. The court noted her own legal representation as a factor in upholding the agreement. In essence, while not strictly required, having an attorney can potentially strengthen your prenup’s enforceability in New Mexico. (Lebeck v. Lebeck, 881 P.2d 727 (N.M. App. 1994)).

New Mexico’s unique rule: No altering spousal support in a prenup

Spousal support is the financial payment from one ex-spouse to the other in the event their marriage comes to an end. Typically, the person with more money pays the other to support them financially as they did in the marriage.

Most states will allow couples to waive or alter their right to spousal support in a prenup (although some states do place heavy limitations on it). Regardless, New Mexico is unique in that it flat-out does not allow you to waive spousal support in your prenup. (See N.M. Stat. § 40-3A-4(B) for the fine print).

Why would New Mexico not want its residents to waive spousal support in a prenup? Well, it’s likely because waiving alimony can have a harmful and significant impact on the lower-earning (or zero-earning) spouse.

For example, let’s say Betty and Bob are signing a prenup. They both currently work jobs and are self-supporting, so they decided to waive spousal support in their prenup. However, down the road, Betty becomes disabled and can no longer work (or she opts to become a stay-at-home mom); either way, she becomes completely financially dependent on Bob. If she was forced to stick with her spousal support waiver from her prenup executed many years prior, this could be financially damning for her and could even wind her up on public assistance (which that state has an interest in avoiding).

Choosing New Mexico as your state for your prenup

Which state should you choose when executing your prenup, and is New Mexico the right state for you? The best practice for choosing the state that governs your prenup is to use the state you plan to live in during your marriage. Easy peasy.

The hard part comes when you either live part-time in New Mexico, you will only be living in New Mexico for a few years, or you’re not sure where you’re going to live (maybe New Mexico, maybe California).

Let’s square away a few things first. Here are some definite situations where you should consider choosing New Mexico:

If you are getting married in a different state but permanently reside in New Mexico and plan to in the future, you should choose New Mexico as your state.
If you own property in another state but live in New Mexico permanently and for the foreseeable future, you should choose New Mexico as your state.
If you live in Texas now but will be moving to New Mexico right around the wedding, New Mexico is likely the right choice (as long as you actually move to New Mexico and live there during the marriage).

Any other scenario outside of the above may fall into a gray area that may require a lawyer’s attention. Our recommendation is to contact a lawyer in the states that are relevant to your situation in order to discern which state to choose for your prenup.

couple walking hand in hand happy in new mexico

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Why financial disclosure in a New Mexico prenup is so important

A crucial aspect of a New Mexican prenup is financial disclosure. Without it, your prenup may be thrown in the garbage. New Mexico law requires fair and reasonable financial disclosure. (N.M. Stat. § 40-3A-7). You may be able to waive financial disclosure, but it must be in writing (and HelloPrenup does not recommend this, nor do we provide a full financial disclosure waiver).

Financial disclosure is typically done via a financial schedule that is attached to the end of your prenup. In this financial schedule, you are required to include a list of all income, assets, accounts, debts, future inheritances, etc. There is no room for skipping anything here. You can’t just include the things you want to share with your spouse and not other things. That would likely not be considered fair and reasonable disclosure.

Why does disclosure matter? Proper financial disclosure makes sure both spouses are aware of their partner’s financial situation when waiving their rights to it. For example, would you waive your right to your partner’s property if you knew they had billions of dollars? Maybe, maybe not, but if you don’t know about it, how can you make the decision fairly?

couple walking towards the city hand in hand happy in new mexico

The default law on spousal support in New Mexico

Since you can’t put any spousal support (money paid by one spouse to the other after separation or divorce) alterations in your prenup, you might be wondering what the default law says about spousal support in NM. Good question. When deciding on whether to order spousal support, the court will consider several factors:

1. Age and health of each spouse:

Older or less healthy spouses may require support and/or need more support.

2. Current and future earnings of each spouse:

This includes what each person currently makes and their potential to earn money in the future.

3. Efforts to work or become self-supporting:

The court wants to see that both people are trying to be financially independent.

4. Needs of each spouse:

This includes the lifestyle they had during the marriage, medical insurance, and possibly life insurance to secure support payments.

5. Length of the marriage:

Longer marriages may lead to longer support periods.

6. Property and assets given to each spouse:

This can affect how much support is needed.

7. Types of assets each spouse has:

This can include things like investments, savings, or real estate. Money from selling property is usually not considered unless there are special circumstances.

8. Types of debts each spouse has:

This could be loans, credit card debt, etc.

9. Income from property:

This could be rental income, dividends, etc.

10. Any agreements made before the separation:

If the couple had any agreements about support, those will be taken into account.

A court may order a reasonable amount of spousal support based on each spouse’s needs and financial situation. There are a few different ways spousal support can be paid out in NM:

Rehabilitative support:

This is to help the receiving spouse gain skills or education to become self-sufficient.

Transitional support:

Temporary help for the receiving spouse to adjust to being independent.

Indefinite support:

Ongoing payments with no set end date.

A lump sum:

Paid all at once or in installments, either ending or continuing after the receiving spouse’s death.

>>For the fine print on New Mexico spousal support, see N.M. Stat. § 40-4-7.

The default law on property

division in New Mexico

So what happens if you don’t get a prenup in NM? Well, it’s simple: if you and your partner can’t agree on how to divide up property, then the default law of New Mexico will apply to property division. New Mexico is one of nine community property states, which means assets acquired during marriage are split as close to 50/50 as possible. (N.M. Stat § 40-3-8).

If something is considered “community property” in an NM divorce, it is going to be split equally. If something is considered “separate property” in an NM divorce, it will not be divided. Here is what New Mexico law considers separate property:

Property owned by either spouse before they got married or after they officially divorced.
Property acquired after a legal separation, unless a court order states otherwise.
Property that a court has officially declared as separate property.
Property received by one spouse as a gift, inheritance, or through a will.
Property that the spouses have agreed in writing is separate property, even if it’s jointly owned. This could include things like a house or other shared assets.

>>For the fine print on property division, see N.M. Stat § 40-3-8.

very happy country on a beautiful street in New Mexico

Prenuptial agreement case law in New Mexico

Want to know how a court in New Mexico views prenups in real life? Well, look no further. We’ve gathered two important cases that revolve around prenups in New Mexico and offer excellent insight into how a court will treat them.

NM Prenup Case Law:

When a prenup is unconscionable in New Mexico

The husband and wife met while the wife vacationing in Mexico. They fell in love, dated for over a year, and decided to get married. The husband moved to the U.S. to be with the wife, and they signed a prenuptial agreement a few days before their wedding. The husband claimed he didn’t really understand what he was signing. He thought it was just a formality to get married and didn’t know enough English to understand the agreement’s details.

After eight years of marriage and two children, the wife filed for divorce. The husband argued that the prenuptial agreement shouldn’t be enforced because he was misled about it and didn’t understand its terms.

The court agreed with the husband, saying that the prenup was unfair (unconscionable). One reason for this was that the agreement said that neither spouse could ask for support from the other. This directly goes against New Mexico law and public policy, which aims to ensure spouses can get financial help if needed (N.M. Stat. § 40-3A-4(B))

So, even though they had a prenup, the court wouldn’t enforce it because it was considered unconscionable (i.e., unfair to the husband and against public policy).

Rivera v. Rivera, 243 P.3d 1148, 1154 (N.M. App. 2010)

What New Mexico says about duress and signing a prenup

The wife claimed the prenup she signed was invalid because she was pressured into signing it, saying she felt she had no choice because she wanted to marry to legitimize her daughter, and the husband said he wouldn’t marry her without it. She argued it was written by the husband himself and signed too close to the wedding. She also argued he basically forced her to sign it because he wouldn’t marry her without one.

However, the court disagreed with the wife and ruled that the prenup was valid. Here’s why:

– Just because the husband wrote the agreement himself doesn’t make it unfair. Especially since the wife had her own lawyer look it over.

– The short time between signing the prenup and the wedding doesn’t automatically mean pressure. Signing the agreement a few days before the wedding is not enough, on its own, to prove that the husband was being forceful or manipulative.

– The husband saying he wouldn’t marry without a prenup isn’t considered forceful enough to invalidate it. This doesn’t count as forcing someone into something through undue influence, coercion, or overreaching.

So, even though the wife felt pressured, the agreement was signed several days before the wedding, and the husband drafted the agreement himself; the court didn’t find enough evidence to say the prenuptial agreement was invalid.

Lebeck v. Lebeck, 881 P.2d 727, 734 (N.M. App. 1994)