Santa Fe, NM asked in Family Law and Divorce for New Mexico

Q: I am married contemplating divorce. What are my rights as far as receiving any pension, social security benefits, etc.

My husband lives and works in Germany where he has been for the last 10+ years. I lived in our home in Austin, Texas up until June 2017 when I moved to Santa Fe. We still own the home in Austin, with tenants. We have one grown child.

We are trying to figure out how best to divide everything.

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2 Lawyer Answers
Gary William Boyle
Gary William Boyle
  • Santa Fe, NM
  • Licensed in New Mexico

A: The answer to your question will depend on counsel gaining a thorough understanding of all of the complicated facts associated with your situation. There are, however, some general concepts that may be helpful.

1. All of the assets you acquired during the marriage (except those acquired by gift or inheritance) are community property which, if a Court gets involved, will be divided equally as much as possible. This means that the equity in your real property in Texas would be divided equally as would the value of any retirement assets that either of you own at least to the extent they were acquired during the marriage. The same would be true for bank accounts, brokerage accounts, real property owned in other places, and everything else that you acquired during your marriage.

2. If you have any debts acquired during the marriage, they would have to be allocated equally to the parties as well.

3. As you divide up your assets, it is impossible to divide everything exactly in half so the law would try to make sure that when you take account of everything that you have divided and the total value that each party receives, you are each receiving total value that is as close to equal as possible. Here is how that might work in simple real world example. Suppose that your house in Austin is worth $500,000 and has $400,000 of debt associated with it. Suppose also that your husband has a pension plan that is worth $200,000 and that is all of the assets and debts that you acquired during the marriage. You would each be entitled to $150,000 at the end of the day. As one example of a resolution, you could agree that you would keep the house and be responsible for the debt and that you would get $50,000 from the pension assets and your husband would retain the remainder of the pension assets. Of course, the actual agreement has infinite possibilities and the calculation would be much more complicated with additional assets.

4. Depending on the length of the marriage and your relative earning capacities, health, age, and other factors, one of you might be eligible to receive spousal support from the other. There are many possibilities with respect to the form that spousal support can take, if the parties meet the guidelines established in the law. These include a lump sum payment, a payment of a fixed amount over time with or without interest, periodic payments over a fixed period or over an unlimited period, and others. You would need to consult counsel to understand eligibility guidelines and the many forms of spousal support. If you do not provide for spousal support during the divorce, you may not be eligible to ask for support in the future.

5. It would absolutely be in your best interests to reach an agreement on the division of your debts and assets before getting the Court involved. You will save a great deal in fees and even more in emotional capital because the case will only be pending for a very short period of time. Competent counsel can assist in that effort.

I would recommend that you engage counsel to deal with the specifics of your case.

Don F. Harris
Don F. Harris
  • Albuquerque, NM
  • Licensed in New Mexico

A: Pension rights that accrue during marriage are normally community property in New Mexico. Social Security is not. In any marriage over ten years, the ex-spouse can claim long term spouse benefits, from the Social Security Administration, without affecting the other ex-spouse. Go the the government website for more information.

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