Prenuptial Agreements

Prenuptial agreements are contracts between two people who intend to marry each other. While couples may address many issues in a prenuptial agreement, the courts will enforce only the parts of an agreement that relate to the distribution of property and income if a marriage ends in divorce, or after the death of one or both spouses. The issue of child support in the event of a divorce cannot be resolved by a prenuptial agreement, but is to be decided by the court.

Prenuptial agreements—also called premarital or postnuptial agreements—are typically used by couples who are entering into a second or subsequent marriage. They are also used when one person will be bringing more financial assets to the marriage than the other person. Prenuptial agreements are often intended to make sure that children from a previous marriage receive a substantial portion of their assets upon the death or divorce of their parent. A prenuptial agreement may also set out in advance what property will not be divided in a divorce action, so that certain property—an antique with sentimental value, for example—stays in the family.

The requirements for a valid prenuptial agreement in New Mexico are fairly simple: It must be in writing, signed by both parties, and acknowledged. The agreement goes into effect upon marriage. Courts will enforce an agreement unless a party proves that:

  • He or she did not sign the agreement voluntarily; or
  • The agreement was unconscionable when it was signed and, before signing, the spouse:
    • Was not given a fair and reasonable disclosure of the property or debts of the other spouse;
    • Did not waive in writing the right to receive disclosure of the property or financial obligations of the other party beyond what was given; and
    • Did not have, or reasonably could not have had, adequate knowledge of the property or debts of the other spouse.

A prenuptial agreement can be changed or even revoked after marriage. The change or revocation can be made by a written agreement signed and acknowledged by both spouses, or by a consistent and mutual course of conduct, which evidences an amendment to or revocation of the prenuptial agreement. The kind of conduct that would show an agreement had been revoked could be something like putting the other spouse’s name on the deed to property that was to remain separate.

Prenuptial agreements are not the same as dissolution or separation agreements. By definition, a prenuptial agreement is one that was made before marriage. It may never go into effect, if the couple does not divorce—it is a “just in case” agreement.

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