Enforcing marital agreements in New Mexico can be some of the more complicated forms of the family law practice.
It’s not that the agreement itself is overly complex, but more a matter of proving that the agreement is being carried out to its full extent by both parties.
Let’s begin with the ABCs of marital agreement enforcement.
First, for the agreement to be enforceable, it must be a written document signed by both parties. If one of the parties tries to show that they did not sign the agreement or that they signed it without conscience knowledge of all debts and property the contract may not be enforceable.
What makes an agreement unconscionable?
The judge will decide the issue of unconscionability from the facts of the case and the prevailing case law. Knowing the outcome of similar cases and how to apply it in the event of a marital agreement issue is crucial to the courts and all parties involved.
The more complicated the agreement, the more room there is for interpretation and issues to arise.
For example, a simple pre-marital agreement may state that all earnings of each party will remain that spouse’s sole property. This is pretty straight forward. But when a party wants to put various contingencies and clauses in their agreement it can become more complex. Though one party may want to protect their assets in case the marriage does not work out, they may still wish to provide for their ex-spouse and more importantly, their children. The longer the couple remains together and the more children they have can add multiple provisions to a marital agreement.
As these provisions expand, the complexity of the document becomes exponentially greater and the enforcement of the agreement can become more difficult.
Another factor that can greatly affect the marital agreement is how separately the assets are kept during the marriage. If properties and bank accounts are merged, no matter how well an agreement is written it will become null and void, especially in New Mexico where is it a common law State. In other words, if both parties do not respect the pre-marital agreement why should a judge?
Marital agreements are not necessarily difficult to draft. But they can become complex and very few attorneys have the experience and knowledge to conceive and advise you on how to balance your love life with your finances to protect your agreement. Nobody, after all, is arguing the agreement when it’s being drafted and signed. The issues arise when the parties are getting divorced.
Contact The Law Firm of PJ Hartman To Learn More About Your Options for Pre & Post-Marital Agreements.