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No Alimony When Cohabitating Couples Break Up in New Mexico

A 2002 study from The National Survey of Family Growth found that nearly 50% of women between the ages of 15 and 44 had cohabitated at some point in their lives. Cohabitation has become a normal way of life for many people.

However, as many cohabitating couples find out–often when it is too late–by choosing cohabitation over marriage, especially in states like New Mexico, individuals give up a lot of the rights and protections afforded to married couples, including the right to spousal support or alimony.

Though New Mexico is a community property state, where all marital assets and debt are divided equally upon divorce, New Mexico does not recognize common law marriage, or cohabitation, except in the limited circumstance when the common law marriage was recognized in another state and then the parties moved together to New Mexico. This means that when an unmarried couple breaks up, property, assets, and debt acquired by one of the parties is generally considered the separate property of that party.

This can often be problematic, since, just like married couples, many cohabitating couples are in the situation where one partner is the major income earner. While for a married couple all income earned by either spouse is divided equally among the parties upon divorce, the same is not true of the couple that was cohabitating.

In order to obtain any kind of monetary relief after a break up, a formerly cohabitating individual must pursue a civil lawsuit asking that any jointly titled assets or debts be divided, much like the assets and debts of a business partnership are divided when the business closes. However, this relief does not extend as far as granting co-habitating couples rights to alimony unless, as noted above, they had a valid common law marriage in another state before moving to New Mexico.

Some states have created what is called palimony, which creates right to support in situations where there is no legally recognized marriage. Palimony suits arose from a 1976 California case, Marvin v. Marvin. Like New Mexico, California is a community property state and does not recognize common law marriage. In Marvin the California court found that when there is an enforceable oral agreement between cohabitating partners to share all property, the agreement must be enforced by a court. The difficult part is proving that there is an enforceable agreement in the first place. However, palimony has NOT been recognized by the New Mexico courts and couples breaking up in New Mexico should not expect to receive such relief.

So while the civil courts can grant some relief to couples who break up but were never married, the New Mexico courts have not chosen to grant the contract-based relief that led to palimony in other states. Thus, couples who choose not to get married should take steps to protect their assets and plan for their future in case the relationship does not last. If you have already reached the break up point, speaking to an experienced family law attorney should help identify your rights and responsibilities under the laws of New Mexico.

Collins & Collins, P.C.
Albuquerque Attorneys

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