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Division of Property & Debt

New Mexico is a community property state.  This means that any property, debt or income accumulated during the marriage belongs equally to each of the parties.

Often times, the parties believe they are entitled to a greater share of the assets, or that the other party should take more of the debt because of misbehavior during the marriage.

Except for property purchased with separate assets, or debt incurred solely for the benefit of separate assets, it is irrelevant how or by whom the property or debt was acquired.  Regardless of how it was acquired, it remains community property and debt to be divided equally upon the dissolution of the marriage.

New Mexico is a “No-Fault Divorce State” – Bad Behavior Does Not Affect the Division of Property and Debt

New Mexico is a no-fault divorce state which means the misbehavior of the parties during the marriage has no bearing on the division of the property and debt on dissolution of the marriage.  Though it may seem unfair, it is the law.

Unfortunately, some folks are unable to accept this notion, and attempt to even the scores of marital misdeeds through the division of property and debt.  This makes for a long, stressful and expensive divorce as the emotional issues control the divorce rather than legally defined standards for dividing the community property and debt at dissolution.

Identify All Property and Debt, Both Community and Separate

Once you have decided to get a divorce, you should begin to identify all of the property and debt of the parties.  This includes both community and separate property and debt.  A Property and Debt Worksheet is useful for beginning the process of identifying and later dividing the property and debt of the parties.

This alone can be challenging and should be started immediately.  There are occasions where waiting can make the identification and location of assets and property difficult due to the behavior of one of the parties.

In some cases, it may be necessary to hire an investigator skilled at locating assets to identify and locate assets.  In other cases, where the assets and property have been identified, it may be necessary to hire experts such as CPA’s and appraisers to valuate the property and assets.

Valuation of Property and Assets

The valuation of property and assets can be very contentious.  There is a tendency to overvalue property the other side wants, and to undervalue property that you want.  These issues will often be hammered out in mediation.

Again, there are cases where the valuations are legitimately in dispute where expert valuation may be necessary.  In cases of high value assets and property, the investment in expert valuation is well worth the costs.

Settlement on the Division of Property and Debts

Settlement of these issues is often possible.  In fact, the great majority of cases settle without the necessity of trial.  The Settlement Facilitation (i.e. mediation) should be approached with good faith.  However, it is very important to prepare.

Preparation for settlement facilitation means doing all of the above well in advance of the mediation date.  In case of thorough preparation and a skilled and knowledgeable facilitator, the session generally ends with a full and final settlement of all issues of property and debt.

Assuming the settlement facilitation is successful, you should walk away with the outline of  if not a fully drafted Marital Settlement Agreement.

Related Reading on the Division of Property and Debt from Our New Mexico Divorce Law Blog

 

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