A New Mexico postnuptial agreement is a contract for married couples to decide on property rights and responsibilities if they divorce.
Similar to “prenups,” postnuptials safeguard interests and address specific circumstances like asset disparity or business ventures. However, unlike prenups signed before marriage, postnuptials are agreed upon after marriage. With less clear rules for postnuptials in New Mexico, consulting a local attorney is advisable.
Legal Considerations
- Signing Requirements: Agreements need to be written, signed, notarized, and filed in each county where the couple owns property covered by the agreement (§ 40-2-4).
- Dividing Property: New Mexico is a community property and no-fault divorce state, where, barring pre-marriage owned assets, all property obtained during the marriage is jointly owned (§ 40-3-8 and § 40-3-12).
Asset and Property Rights
Property Transactions
Spouses can deal with property transactions with each other or anyone else, as if unmarried, but must follow the general rules that apply to people in confidential relationships when dealing among themselves. [1]
Marriage and Divorce
Legal Relations and Separation Agreements
Spouses cannot change their legal status through contracts with each other, except for property matters and separation agreements. They can write an agreement for immediate separation and arrange for their own or their children’s support during separation. [2]
Consent
Mutual consent is enough for the validity of separation agreements, as discussed. [3]
Estate Planning and Inheritance
Nonprobate Transfers on Death
Nonprobate transfers on death include various written instruments like insurance policies and retirement plans. These provisions allow for:
- Designation of beneficiaries for money or benefits controlled by or owed to the decedent, in the instrument itself or in a separate document, including a will.
- Termination of payment obligations under the instrument upon the death of the promisee or promisor before payment or demand.
- Transfer of property controlled by or owned by the decedent to designated persons, in the instrument or a separate document, including a will. [4]
