Legal Question in Family Law in New Mexico

This has to do with a possible upcoming divorce. My wife and I reside in New Mexico, a community property state. Our major asset is a home gifted to us both by my late father, both our names appear on the deed. Two and a half years ago, we took out a 110,000 dollar home improvement loan. My wife appears on the loan as the primary because her credit rating at the time was better than mine. In our discussions about divorce, my wife claims that because the loan is in her name, that makes the house and all in it hers 'by right' should we separate. Is she right? From what I've read about community property law, it doesn't matter which spouse contributed the most money toward the family maintenence or purchases, but that both are assumed to hold the property in a 50/50 partnership. Will I need to retain a lawyer should my wife insist on keeping the house to herself if we do divorce? Thank you for your answer.


Asked on 12/10/09, 8:59 pm

1 Answer from Attorneys
George Chandler Chandler Law of Los Alamos

Ordinarily if you are given a house by your father or inherit it it would be your separate property. If the house was given to both of you it's not your separate property, it's community property 50-50. The deed typically would have "joint tenants with right of survival," which is another way of making it 50-50. Those words don't have to be there but most escrow agents or realtors would suggest putting them in the deed so look and see. If it was given to both of you it won't matter anyway.

The loan is a community debt unless the lender agreed that it would be a separate debt. The loan presumably has the house for collateral so the lender probably made sure it is a community debt. In any event it wouldn't change the nature of the ownership of the house. You're also correct about your earnings, no matter who earns how much it's community and 50-50. Unless you had a prenuptial agreement or some other agreement that some earnings or other property would be separate property. Sounds like your almost-ex is giving you a snow job. See a lawyer.

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Answered on 12/16/09, 1:15 am


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