Marital Separation Property

Note: This summary is not intended to be an all inclusive discussion of the law of separation agreements in New Mexico, but does include basic and other provisions.

General Summary:

The parties to an action for dissolution of marriage may contract for the distribution of their assets and liabilities and to provide for the necessary support of the parties or their children. When the agreement is incorporated into the decree of dissolutionment, it becomes a judgment and may be modified only while the court retains jurisdiction - thirty days by statute.

Statutes:

New Mexico Statutes Annotated

CHAPTER 40

DOMESTIC AFFAIRS

Article 2

Rights of Married Persons Generally

Execution of marriage settlement and separation contracts:

All contracts for marriage settlements and contracts for separation, must be in writing, and executed and acknowledged or proved in like manner as a grant of land is required to be executed and acknowledged or proved. Section 40-2-4.

Recording of marriage settlement or separation contract:

When such contract is acknowledged or proved it must be recorded in the office of the recorder of every county in which any real estate may be situated which is granted or affected by such contract. Section 40-2-5.

Effect of recording or failure to record settlement or separation contract:

The recording or nonrecording of such contract has a like effect as the recording or nonrecording of a grant of real property. Section 40-2-6.

Persons who may make marriage settlements:

Any person capable of contracting marriage may make a valid marriage settlement. Section 40-2-7.

Extent of mutual alteration of legal relations:

A husband and wife cannot by any contract with each other alter their legal relations, except of their property, and except that they may agree in writing, to an immediate separation, and may make provisions for the support of either of them and of their children during their separation. Section 40-2-8.

Consideration in separation contract:

The mutual consent of the parties is a sufficient consideration for such an agreement as is mentioned in the last section [40-2-8 NMSA 1978]. Section 40-2-9.

Case Law:

Moreover, a final decree of dissolution of marriage, which incorporates the parties' property settlement agreement may not be modified after the expiration of the statutory time for doing so. Wehrle v. Robison, 92 N.M. 485, 590 P.2d 633 (1979). A district court retains jurisdiction over final judgments for a period of thirty days after entry of the judgment. § 39-1-1, N.M.S.A. 1978.