New Mexico Premarital and Prenuptial Agreements

The Uniform Premarital Agreement Act, which was written by the National Conference of Commissioners on Uniform State Law in 1983, encourages the enforcement of prenuptial agreements. The exact UPAA standards differ from state to state just like other divorce laws. The following is the New Mexico state statutes regarding premarital and prenuptial agreements and how they are considered and enforced by the New Mexico court.

New Mexico: N.M.S.A. Ch. 40, Art. 3A

40-3A-1. Short title.

This act [ 40-3A-1 to 40-3A-10 NMSA 1978] may be cited as the "Uniform Premarital Agreement Act".

40-3A-2. Definitions.

As used in the Uniform Premarital Agreement Act,

A. "premarital agreement" means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage; and

B. "property" means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.

40-3A-3. Formalities.

A premarital agreement must be in writing, signed by both parties and acknowledged. It is enforceable without consideration.

40-3A-4. Content.

A. Parties to a premarital agreement may contract with respect to:

(1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

(2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

(3) the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

(4) the making of a will, trust, or other arrangement to carry out the provisions of the agreement;

(5) the ownership rights in and disposition of the death benefit from a life insurance policy;

(6) the choice of law governing the construction of the agreement; and

(7) any other matter not in violation of public policy.

B. A premarital agreement may not adversely affect the right of a child or spouse to support, a party’s right to child custody or visitation, a party’s choice of abode or a party’s freedom to pursue career opportunities.

40-3A-5. Effect of marriage.

A premarital agreement becomes effective upon marriage.

40-3A-6. Amendment; revocation.

After marriage, a premarital agreement may be amended or revoked only by a written agreement signed and acknowledged by the parties or by a consistent and mutual course of conduct, which evidences an amendment to or revocation of the premarital agreement. The amended agreement or the revocation is enforceable without consideration.

40-3A-7. Enforcement.

A. A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:

(1) that party did not execute the agreement voluntarily; or

(2) the agreement was unconscionable when it was executed and, before execution of the agreement, that party:

(a) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;

(b) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

(c) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

B. An issue of unconscionability or voluntariness of a premarital agreement shall be decided by the court as a matter of law.

40-3A-8. Enforcement; void marriage.

If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.

40-3A-9. Limitation of actions.

Any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.

40-3A-10. Application and construction.

The Uniform Premarital Agreement Act [ 40-3A-1 NMSA 1978] shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of that act among states enacting it.