For most New Mexico couples contemplating divorce, the most important questions are child custody and support, spousal maintenance, and division of property. One of the most unanticipated questions in a divorce proceeding is the division of the spouses’ debts.

Because New Mexico is a community property debt, some kinds of debts are automatically assigned to either the husband or the wife, but other debts may become the subject of dispute in a divorce. All debts incurred by the spouses prior to the marriage are classified as the individual debt of the spouse who incurred the obligation. A debt incurred by one spouse pursuant to an agreement that identifies the obligation as an individual debt is also a separate debt. Most other debts are considered community debts, and the obligation is usually divided during the divorce process. The allocation of credit card debt usually depends on whether the account was a separate account or a joint account. Because individual credit card debts are not identified as separate debts, they are considered community debts regardless of the names on the account.

The most complex form of debt is the loan taken out to purchase the couple’s residence. Such loans are often secured by a mortgage, and the large account balance precludes the repayment of the loan during the divorce process. If the house is awarded to one spouse, the other spouse usually receives a lien against the house for a specified amount or percentage of value; such liens are satisfied when the house is sold or when the parties agree to liquidate the lien.

As this brief summary demonstrates, the allocation of debt in a divorce can be complex. Anyone involved in or thinking about instituting a divorce may wish to consult an attorney who specializes in such cases. A knowledgeable family lawyer can provide advice about methods dividing debt by agreement or possible outcomes if the court allocates the debt. In the end, such a consultation may prevent serious mistakes from being made if one or both parties attempt to allocate their debts without legal advice.

Source:, “What Happens to My Debt If I Get a Divorce?”, Leslie Tayne, June 23, 2015