According to the U.S. Census Bureau, in 2010, 45% of households in the U.S. were made up of unmarried couples. Even though the trend on a national level is for couples to live together instead of getting married, under New Mexico law the choice not to get married may have several unpleasant consequences when it comes to breaking up.
Since New Mexico does not recognize common law marriage, many of the protections afforded to couples through the concept of community property are denied to those who choose not to get married.
New Mexico is a community property state, where all assets and debt acquired during the marriage are divided equally upon divorce. However, New Mexico does not recognize common law marriage. In New Mexico, to obtain the rights and responsibilities of marriage, like the right to community property and interim division of income and expenses, a couple must be formally married by a civil magistrate, judge, clergyman, or authorized representative of a federally recognized Indian tribe. This is true regardless of how long a couple has lived together or whether or not they have children.
Like divorces, when a long co-habitation relationship ends, it may take months and even years to obtain a division of property and assets. During this time, mortgages and other bills still need to be paid on time, putting some individuals in a precarious financial position. Recognizing that one spouse may have been the couple‘s major or sole source of income, New Mexico family courts have routinely allowed the party whose income is lower to file a Motion for Division of Interim Income and Expenses. This motion essentially divides income and expenses equally for the duration of the divorce process. However, in New Mexico, the protection afforded by this kind of a motion is only available to married couples.
The idea behind a Motion for Division of Interim Income and Expenses is that couples are still technically married until the final divorce decree, and therefore income and debts are still community property. In the case of co-habitating couples, however, there is no community property and therefore neither party is entitled to an equal division of the couple‘s income or debt. For this reason, there is no right to interim division for parties who were not legally married under New Mexico law and are now seeking to end the relationship and divide the assets that they have accumulated together.
Since the New Mexico Family Court lacks jurisdiction over unmarried couples for property division purposes, when co-habitating couples break up and cannot agree upon a division of assets, they must pursue a civil suit. Civil suits of this kind may take a long time to resolve. They are very difficult to prove as they are based upon principles of contract law. Worse yet, the contracts are typically oral rather than written causing many evidentiary issues related to the burdens of proof. During this time a party is not entitled to interim support or division of income or debt.
If there are children involved, a family court does have jurisdiction over child custody and child support. The courts in New Mexico will both award interim custody and time-sharing as well as interim child support while the custody and support case is pending. However, for anything unrelated to child maintenance or support, the parties are unlikely to have to divide income and expenses while their civil property division suit is pending.
These cases can be quite complicated. In addition to the standard issues of child custody and child support, the contract issues can be very challenging. As such, when faced with this situation, it is advisable to seek the guidance of an experienced divorce and family law attorney.