Community Property Laws

"New Mexico is a community property state. Most of New Mexico’s community property statutes are contained in its Community Property Act of 1973, which is codified at NMSA §40-3-6 to 40-3-17 .

Separate property and community property of married individuals is defined in NMSA §40-3-8.

Property acquired during marriage by either husband or wife, or both, is presumed to be community property. Property or any interest therein acquired during marriage by a woman by an instrument in writing, in her name alone, or in her name and the name of another person not her husband, is presumed to be the separate property of the married woman if the instrument in writing was delivered and accepted prior to July 1, 1973. NMSA §40-3-12 .

The rules for management of community property differ depending on whether the property is real property or personal property. Except for purchase money mortgages, both spouses must sign all transfers, conveyances, or mortgages, or contracts to transfer, convey, or mortgage, any interest in community real property or in separate real property owned by the spouses as cotenants in joint tenancy or tenancy in common. The same is true of leases if the initial term of the lease, together with any option or extension, exceeds five years or if the lease is for an indefinite term. Any such transfer, conveyance, mortgage, or lease, or any such contract to transfer, convey, mortgage, or lease, attempted to be made by either spouse alone is void. NMSA §40-3-13.

Either spouse alone has full power to manage, control, dispose of and encumber the entire community personal property, except that special rules apply when only one spouse or both spouses are (i) named in a document evidencing ownership of community personal property, or (ii) named in a written agreement between that spouse and another person and a third party as having authority to manage, control, dispose or encumber the community personal property that is described in the agreement. NMSA §40-3-14.

One spouse need not join with the other when the other gives a power of attorney. NMSA §40-2-3.

A contract of indemnity that is not signed by both spouses does not encumber the community property of either spouse. NMSA §40-3-4.

Definitions for separate and community debts are contained in NMSA §40-3-9.

Priorities regarding satisfaction of separate debts are enumerated in NMSA §40-3-10 and priorities of community debts are listed in NMSA §40-3-11. Both sets of priorities have one thing in common concerning the marital residence: If both spouses do not sign an obligation created after marriage, the interest of the nonsigning spouse in the marital residence is not liable for the debt. "

"Dower and curtesy and have been abolished, NMSA 1978, § 45-2-112 (1993), as have tenancies by the entirety. Swink v. Fingado, 1993-NMSC-013, ¶ 16 n. 9, 115 N.M. 275, 850 P.2d 978

Upon dissolution of marriage the community property becomes separate property. If it is not awarded to one spouse or the other, but remains jointly owned, they own it as tenants in common. Atlas Corp. v. DeVilliers, 447 F.2d 799 (10th Cir. 1971), cert. denied, 405 U.S. 933, 92 S.Ct. 939 (1972). "

Although the application of NMSA 1978, § 40-3-4 (1965) to ordinary guaranties is not clear, some lenders, out of an abundance of caution, obtain the signatures of both spouses on all guaranties, at least to the extent necessary to encumber the community property and so much of the separate property as is necessary to assure repayment of the loan. Because of the uncertainties created by New Mexico’s community property laws, most lenders require the joinder of both spouses in obligations and encumbrances created by married persons. For more information about what property is exempt from execution or attachment by creditors, see the methods of judgment enforcement section.