The law is pretty straightforward in concept. The application of the law can be significantly more complex and contentious.
Community Property Division Often Highly Contested
The division of property and debt is often the most hotly contested part of the divorce, other than child custody and time-sharing. Each party is entitled to an equal share of all property and debt identified as community property.
Likewise, each party is equally responsible under the law for all community debt. The greatest challenge is often in the identification and designation of community property and debt. This should be started early in the process particularly in cases of complicated property and debt issues and/or anticipated conflict in the division.
As a rule, any property or debt acquired during the marriage is community property no matter whose name is on the title.
The same outcome results regardless of whose name is on the title to the property or who incurred the debt. This can cause pretty serious issues in case of one party irresponsibly or even maliciously running up debt.
Keep in mind that separate propertyis very different even if acquired by one party during the marriage.
Determining Community Property & Debt
New Mexico is not a common law marriage state. Without marriage, there is not community property.
There are a number of qualifications to the rule. First and foremost, there must be a legal marriage. New Mexico does not recognize common law marriage as do many states. Therefore, in the absence of a legal marriage, there can be no community property.
Second, there are a number of exceptions to the blanket rule that all property acquired during the marriage is community property. Exceptions to the rule included inheritance, gifts, personal injury settlement, gambling debts, and property and debts incurred in violation of court order.
Legal Division May Not Seem “Fair”
As might be imagined, these disputes can become very heated. The outcomes can seem very unfair particularly in cases of community debt where one of the parties is reckless, dishonest or malicious in running up debt and the other party remains liable to creditors. There are ways to bring greater fairness to the division of community property and debt.
The first step is identifying all property and debt. Only then can it be determined if it is community or separate
Seek Guidance from an Experienced Divorce Attorney
If you are going through a divorce, the division of property and debt is very important. It can be pretty complex and challenging depending on the level and nature of assets and debt as well as the level of conflict.
It is typically best to seek the guidance of experienced divorce attorney to help with this complex issue. Moreover it is generally advisable to do this early in the process.