Are you making it official with your partner soon? Congrats! Before you walk down the aisle, you should consider a prenuptial agreement. In New Mexico, there are several unique laws that apply to prenups, including the requirement for notarization and the prohibition of spousal support waivers. On top of that, it’s important to understand what happens in a divorce if you don’t have a prenup in New Mexico. And, there’s more! Let’s get into the top five things you need to know about prenups in New Mexico.
1. The laws governing prenuptial agreements in New Mexico
New Mexico is one of several states that has adopted some form of the Uniform Premarital Agreement Act (UPAA). This means that New Mexico’s laws are similar to those other states that have adopted the UPAA as well. However, New Mexico has a few of its own twists on the original UPAA. For example, it does not allow spousal support waiver clauses in prenup and it requires notarization, both of which are not in the original UPAA.
Here are all of the requirements for a valid and enforceable New Mexico prenuptial agreement:
- Must be in writing and signed by both parties
- The agreement must also be notarized by a notary public
- Each party must provide full financial disclosure of all assets, income, debt, and future inheritances
- The agreement must be entered into voluntarily, not under duress
- The agreement must not be unconscionable (i.e., must not be unreasonable, unfair, or overly one-sided)
As you can see, these rules were set up in New Mexico to facilitate a fair and reasonable agreement between two future spouses. (See N.M. Stat. §§ 40-3A-1 to 40-3A-10).
2. New Mexico is a community property state
Let’s talk about what happens in a New Mexico divorce without a prenuptial agreement. New Mexico is one of the few states that follow community property principles. This means that property between the spouses is automatically divided 50-50, with few exceptions. It is generally not divided based on contribution, duration of marriage, or other factors. Instead, it’s automatically split equally. This can be troubling for some people, especially if there are certain assets that have had nothing to do with the other spouse.
With a prenuptial agreement, you may override these principles of community property in New Mexico. With a valid and enforceable agreement, you can make your own rules about property division—whether it’s 50-50 or some other split. You can also ensure your premarital property (stuff owned before the wedding) stays your property in a divorce.
3. You can’t put spousal support clauses in a New Mexico prenuptial agreement
One of the more unique requirements in New Mexico regarding prenuptial agreements is the prohibition on spousal support waivers. You cannot put a spousal support restriction or waiver in your New Mexican prenuptial agreement. (N.M. Stat. § 40-3A-4). The idea behind this is that waiving spousal support is such an impactful decision and can leave someone in an extremely difficult financial situation. Given that it is impossible to predict the future financial circumstances of each spouse, New Mexico legislation and judiciaries have declared no waivers of spousal support in prenup will be upheld.
For example, let’s say there are two individuals planning to get married. They are both independently self-sufficient and have their own careers. They decide to waive spousal support in their prenup. Fast forward 20 years and one party has forgone their career to be a stay-at-home parent and hasn’t worked in 18 years. Without spousal support, they would be left in an extremely difficult financial situation, having been out of the workforce for 18 years.
Bottom line? You can’t alter your rights or your partner’s rights to spousal support in a New Mexico prenuptial agreement.
4. New Mexico prenuptial agreements must be notarized
A New Mexico prenuptial agreement must be notarized. This is not required in most states, but most lawyers across the U.S. recommend it anyway, as it is an effective and cheap way to add an extra layer of protection onto a prenuptial agreement. Notarization is the act of signing a document in front of a registered notary public, and confirming your identity to such person prior to signing. The notary public then signs the document as well and attaches their notary seal to it. If the agreement is ever challenged one day, the process of notarization confirms to a court that the agreement was signed by the right people and was not signed under certain elements of fraud.
5. Prenuptial agreements promote marital harmony
Despite popular belief, prenuptial agreements do more than just protect financial interests. They also promote marital harmony. In fact, 83% of HelloPrenup users confirmed that they felt closer together after the prenup process than before. This is because the act of getting a prenuptial agreement fosters conversations that may not have occurred prior to the marriage. When creating a prenup, the couple must discuss several key topics: property ownership, retirement, how to handle joint finances during the marriage, death, and, yes, divorce. For example, in a prenuptial agreement, many people include terms around joint bank accounts, and whether or not the couple will have one. This prompts conversations about contributions to bank accounts, spending habits, budgeting, expenses, etc.
The takeaway? Prenups facilitate hard conversations. Having those hard conversations promotes marital alignment and mutual understanding, which ultimately results in less misunderstandings and conflict in the marriage down the road.
The bottom line on prenuptial agreements in New Mexico
Well, there you have it. The top five things to know about prenuptial agreements in New Mexico. First, it’s crucial to understand the unique legal requirements for a NM prenuptial agreement, including notarization and the prohibition on spousal support waivers. Second, you should understand what the laws are should you not have an agreement in place. And, finally, getting a prenup facilitates a stronger foundation for your relationship, helping you step into marriage on the right foot. Happy planning!
Meredith Baker stands out as a seasoned lawyer, committed to delivering unparalleled service to each client through her vast expertise in business law, family law and civil litigation. Meredith loves contracts and working one-on-one with her clients. In fact, when she was a child, Meredith invented a game of “forms” for her family members. Everyone knew she would either be an attorney, or work for the DMV.
Meredith brings a wealth of experience in drafting, reviewing, and enforcing prenuptial agreements in New York, New Mexico, and California. Her practice draws on her understanding of the complexities of family law, paired with her ability to navigate the nuances of multi-jurisdictional legal matters. Her prior roles, including judicial clerkship, serving as associate counsel for an OIG and white collar securities attorney, have honed her ability to anticipate potential conflicts and protect her clients’ interests.
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