In a New Mexico dissolution proceeding, the court must determine how to divide the debt of the spouses. This generally requires the court to do three things: identify all debts, classify the debts, and divide the debts.
As with assets, the court must first identify all of the parties’ debts. To do this, the court generally relies on the parties to disclose all outstanding debt, whether separate or community. Within 45 days of the filing of an action to dissolve the marriage, both parties must make disclosures of all income and expenses, as well as assets and debts. The court uses this information to identify all outstanding debts, such as home mortgages, car loans, and credit card debts.
Once the debts are identified, the court will classify each as separate debt or community debt. The categories of separate debt are very narrow under New Mexico law:
- debt that predates the marriage;
- debt that accrues after the divorce is final;
- debt accrued after a permanent, legal separation;
- debt adjudicated as separate by a court;
- debt that a married spouse notifies a creditor in writing as separate at the time the debt is incurred;
- debt that is the result of one spouse’s wrongdoing, committed either before the marriage or after the divorce is final;
- debt that is the result of “a separate tort committed during marriage”;
- debt that is declared to be unreasonable by a court as a matter of law; and
Any debt that does not fall into one of the categories listed above is community debt.
After all debt is identified and classified, it will be divided by the court. First, separate debts are skimmed off the top and allocated to that party. Then, the court divides the community debts so that each party is equally responsible. Usually, the court will offset debts and assets to equalize the overall benefit and detriment to both parties.
If you need an attorney to pursue your best interests in a marital dissolution proceeding, contact the Lightning Legal Group. We have extensive experience in New Mexico family law, including the division of assets and debts, and we’ll stay beside you every step of the way. Call us today: (505) 247-2390.