Welcome to New Mexico Prenup Laws 101! Count yourself lucky if you call a state as unique as New Mexico home. While you probably already have an answer to the question, “Red or Green?” you may still have some questions about how prenups work in New Mexico. Well, we’ve got the answers! Keep reading to learn more about what makes a prenup valid and enforceable in New Mexico and what you can and cannot include in your prenup. Without further ado(be), let’s dive in!
Why do I need a prenup in New Mexico?
In New Mexico, a prenup is also known as a “premarital agreement,” but both terms refer to the same thing—a contract you and your fiancé enter into before you get hitched. Why do I need one, you may ask? The answer is simple: to have a say in how your assets and debts are divided and how spousal support will be handled in the event of divorce.
New Mexico is a community property state, which means that the court will divide marital assets and debts equally or as close to 50/50 as possible. Let’s say your soon-to-be spouse is an avid Amazon shopper who, unbeknownst to you, racks up a ton of debt on their credit card during the marriage for household necessities. A court would likely order you both to share responsibility for these payments. Don’t want that to happen? Then make sure you get a prenup before the big day!
Are prenups valid in New Mexico?
Yes, prenups that comply with New Mexico’s legal requirements are valid and enforceable. To be valid in New Mexico, a prenup must comply with the New Mexico Uniform Premarital Agreement Act. Here are the requirements:
- Must be in writing.
- Must be signed by both parties.
- Must be signed voluntarily by both parties (meaning no one can be pressured or deceived into signing).
- Must adhere to state laws and public policy (for example, it cannot involve anything illegal or determine child custody or support).
What can you include in a New Mexico prenup?
In New Mexico, N.M. Stat. § 40-3A-4 details what can be put in a prenup, including clauses about property division, distribution of life insurance benefits, choice of law (i.e., which state’s laws will apply to the agreement), and any other terms as long as they don’t violate state law or public policy. Some couples also include clauses about their pets, engagement, and wedding rings, you name it! As long as it’s consistent with New Mexico law and public policy, then you’re good to go.
Important note: New Mexico does not permit clauses adversely affecting spousal support, which is a very unique rule. Only a handful of other states restrict the right to contract around spousal support: New Mexico, Iowa, and South Dakota! This means you cannot add clauses waiving or restricting spousal support–it will not be upheld!
Does anything void a prenup in New Mexico?
You’ll want to steer clear of a few things to have a valid and enforceable prenup in New Mexico. Let’s take a look at what can void a prenup in New Mexico:
Signed Involuntarily: If one spouse was coerced or pressured into signing the prenup, the court may refuse to enforce it (N.M. Stat. § 40-3A-7).
Inadequate Financial Disclosure: In New Mexico, you’ll both need to provide fair and reasonable financial disclosure (N.M. Stat. § 40-3A-7). This means you have to spill the beans when it comes to your income, assets, properties, and even debts. For example, it’s not enough to just list that you have a brokerage account. You’ll also need to specify its approximate value. Although New Mexico law allows a spouse to waive their right to receive this information in writing, it’s not recommended. If one of you decides to hide any financial information from the other, rest assured the court will deem your prenup unenforceable.
Unconscionable (i.e., Unfair) Terms: The prenup can’t be overly one-sided or unfair at the time of signing. Specifically, if the court finds the terms excessively favor one spouse, it may not uphold the agreement (N.M. Stat. § 40-3A-7).
Terms That Violate the Law: Your prenup can’t involve anything illegal or require either party to break the law (N.M. Stat. § 40-3A-4(A)(7)). This also includes clauses that adversely affect one spouse’s right to spousal support.
Terms that Violate Public Policy: A prenup cannot include provisions regarding child custody or support or spousal support. (N.M. Stat. § 40-3A-4(B)). Why? Because these matters are determined based on the child’s best interests at the time of divorce. Additionally, a spouse cannot waive their right to receive spousal support in New Mexico (N.M. Stat. § 40-3A-4(B)). This is a statutory requirement that is unique to New Mexico. We’ll discuss the rationale behind this regulation in further detail below.
Why can’t I waive spousal support in a New Mexico prenup?
New Mexico does not allow spouses to waive their right to spousal support as a matter of public policy. Specifically, New Mexico does not want a spouse to be unable to support themselves financially after a divorce.
Spousal support is typically awarded when one spouse is financially dependent upon the other. For the recipient spouse, spousal support could mean the difference between being self-sufficient during or after a divorce and qualifying for public assistance.
If you still think you can slip a spousal support waiver into your prenup in New Mexico, think again. In the 2010 case, Rivera v. Rivera, the court did not enforce a prenup that included a clause that prevented both spouses from requesting financial support from the other. The court found the prenup to be unconscionable (i.e., one-sided) for several reasons, including the fact that the Husband spoke little English and did not fully understand what he was signing at the time. Moreover, the court determined that the prenup violated New Mexico’s public policy.
Bottom line? New Mexico has very definitive statutes and case law to support its public policy against spousal support waivers at the time of prenup. If you try to contract around this, it’s highly unlikely that your prenup will be enforced.
How far in advance of the wedding should you get a prenup?
In New Mexico, there’s no specific timeframe for when you have to sign a prenup before your wedding date. Practically speaking, though, it’s best to wrap everything up well ahead of your wedding day so that you have plenty of time to negotiate any differences and seek legal counsel (if you want to). More importantly, it can prevent one spouse from claiming that they were pressured into signing the agreement at the last minute.
Take the case Lebeck v. Lebeck, for example. The Wife claimed that the prenup was invalid because she felt pressured into signing it close to the wedding date. The wife wanted to get married to legitimize her child, but the husband only agreed to get married with a prenup. The wife argued that the prenup was invalid because she had no choice but to sign the prenup. The wife also pointed out that the Husband wrote the prenup himself and presented it to her in the days leading up to their wedding. Nevertheless, the court ruled that the prenup was valid and enforceable. This is why:
- The wife had legal representation and had the agreement reviewed before she signed it.
- The short timeframe between the Wife’s execution of the agreement and the wedding date alone did not mean that the Wife had a lack of free will or was otherwise pressured by the Husband to sign.
- The husband’s statement that he would not get married without a prenup did not rise to the level of undue influence or coercion.
Moral of the story? Signing a prenup a few days before your wedding in New Mexico is not enough on its own to invalidate your prenup. However, if you know that you want a prenup, it’s still best that you give yourself ample time to complete one with your fiancé.
Does the prenup need to be notarized?
Yes, notarization is required in New Mexico for your prenup to be considered valid and enforceable according to NM Stat § 40-3A-3 because it requires a prenup to be “acknowledged.” Plus, notarization can be a great way to add an extra layer of protection to your prenup, which is a smart move to make. Notarization provides proof that the other party signed the agreement and was sound of mind at the time of signing. So, if your spouse ever tries to claim that their signature was forged or that they didn’t know they were signing a prenup later on down the line, your notarized agreement provides solid evidence to the contrary.
Main takeaway on New Mexico prenups
And that concludes your crash course on New Mexico’s prenup laws! Now that you’ve got the scoop on New Mexico’s prenup law landscape, you’re well on your way to getting started. The toughest question now is whether you’ll spend your honeymoon hiking through the Sangre de Cristo Mountains or luxuriating at one of Santa Fe’s world-renowned spas. Remember to give yourselves plenty of time and be sure to steer clear of the areas that can invalidate your prenup. Happy prenup planning!
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