Many couples are choosing to live together without the trappings of marriage. When these couples break up, the legal issues can be better or worse depending on the circumstances.
First, it should be noted that New Mexico does not recognize common law marriage. There is one exception. New Mexico will recognize a valid common law marriage from another state under the Full Faith and Credit Clause of the U.S. Constitution. However, for those couples cohabiting in New Mexico, no common law marriage will be recognized.
This means that the community property laws of New Mexico do not apply to these break ups. In other words, there is no protection under the New Mexico Family Law code for either party related to the division of property and debt. On the other hand, all laws related to child custody and support applies.
Instead, the governing law is simply standard property and contract law. The break up of an unmarried couple is more like the break up of a business than a marriage. The parties can get out only what they put in. There is no equal division of property and debt under community property laws.
Just as the community property laws do not apply, the laws related to alimony do not apply in these cases in New Mexico. This is because alimony is based in community property rights. As such, neither party following the relationship will be entitled to ongoing financial support in the absence of a valid marriage. This can come as a shock to many and a great relief to others.
Due to the lack of applicable community property laws and the legal necessities arising from them, one might think these relationships are easier to end than a marriage. The fact is that it can actually get fairly complex in terms of establishing what each party put in to the relationship in terms of financial contributions.
Because there is no statutory protection or guidelines governing the division of property and debt, and the parties have rarely entered into contractual relations addressing this possibility, dividing things up can be quite complicated and contentious. In fact, these break ups–for these reasons–can be significantly more difficult in terms of the division of property and debt than a comparable divorce action.
Keep in mind that although community property laws do not apply to the parties‘ property and debt, the laws regarding child custody, child support, paternity and other issues related to children fully apply. With the growing prevalence of cohabitation, the issue of children in the relationship is quite common. Likewise, so are the child custody and support issues. These can be every bit as contentious as any other child custody dispute.
In short, if you have been cohabiting in the absence of marriage and are contemplating a split, brace yourself for what could be a very contentious and difficult time. Perhaps, more than ever, the “for better or the worse” bit applies to these situations. Depending on your position and contributions to the relationship, there may be much more “the worse.”