2019 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 2 - Rights of Married Persons Generally
Section 40-2-4 - [Execution of marriage settlement and separation contracts.]

All contracts for marriage settlements and contracts for separation, must be in writing, and executed and acknowledged or proved in like manner as a grant of land is required to be executed and acknowledged or proved.

History: Laws 1907, ch. 37, § 22; Code 1915, § 2752; C.S. 1929, § 68-203; 1941 Comp., § 65-208; 1953 Comp., § 57-2-8.

Cross references. — For acknowledgements, see 14-14-1 to 14-14-11 NMSA 1978.

For signing of real estate conveyances, see 47-1-5 NMSA 1978.

Separation agreement. — Husband and wife may mutually consent to a separation without court intervention. Gilmore v. Gilmore, 1988-NMCA-004, 106 N.M. 788, 750 P.2d 1114, cert. denied, 107 N.M. 16, 751 P.2d 700.

Contracts made prior to marriage are to be construed under general law, or by this act. McDonald v. Lambert, 1938-NMSC-065, 43 N.M. 27, 85 P.2d 78, 120 A.L.R. 250, overruled on other grounds by Chavez v. Chavez, 1952-NMSC-050, 56 N.M. 393, 244 P.2d 781.

All contracts must be in writing. — This statute was adopted in its exact language from California and requires that all contracts for marriage settlements must be in writing. Tellez v. Tellez, 1947-NMSC-058, 51 N.M. 416, 186 P.2d 390.

Proof of unacknowledged marriage agreement. — A marriage agreement which has not been acknowledged may be proved by a spouse testifying under oath at trial to the validity of her signature on the agreement. Christiansen v. Christiansen, 1983-NMSC-058, 100 N.M. 102, 666 P.2d 781.

Agreement enforceable without signature where assent proven. — Although settlement agreements are subject to the statute of frauds, husband's refusal to sign the agreement did not render it unenforceable, where his own testimony showed that he understood the terms of the agreement and had assented to it. Herrera v. Herrera, 1999-NMCA-034, 126 N.M. 705, 974 P.2d 675.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 24 Am. Jur. 2d Divorce and Separation §§ 1108 to 1153.

Income tax treatment of payment to spouse for relinquishment of inchoate marital rights in other's property, 1 A.L.R.2d 1037.

Provision for post-mortem payment or performance as affecting instrument's character and validity as a contract, 1 A.L.R.2d 1178.

Separation agreement as barring rights of surviving spouse in other's estate, 34 A.L.R.2d 1020.

Marriage as extinguishing contractual indebtedness between parties, 45 A.L.R.2d 722.

Spouse's right to take under other spouse's will as affected by postnuptial agreement or property settlement, 53 A.L.R.2d 475.

Operation and effect of antenuptial agreement to waive or bar surviving spouse's right to probate homestead or surviving family's similar homestead right or exemption, 65 A.L.R.2d 727.

Obligation under property settlement agreement between spouses as dischargeable in bankruptcy, 74 A.L.R.2d 758.

Antenuptial and settlement agreements as affecting right of decedent's spouse to contest will, 78 A.L.R.2d 1060.

Declaratory judgment, during lifetime of spouses, as to construction of antenuptial agreement dealing with property rights of survivor, 80 A.L.R.2d 941.

Waiver of right to widow's allowance by postnuptial agreement, 9 A.L.R.3d 955.

Waiver of right to widow's allowance by antenuptial agreement, 30 A.L.R.3d 858.

Enforcement of antenuptial contract or settlement conditioned upon marriage, where marriage was subsequently declared void, 46 A.L.R.3d 1403.

Spouse's secret intention not to abide by written antenuptial agreement relating to financial matters as a ground for annulment, 66 A.L.R.3d 1282.

What constitutes contract between husband or wife and third person promotive of divorce or separation, 93 A.L.R.3d 523.

Enforceability of premarital agreements governing support or property rights upon divorce as affected by circumstances surrounding execution - modern status, 53 A.L.R.4th 85.

Antenuptial contracts: parties' behavior during marriage as abandonment, estoppel, or waiver regarding contractual rights, 56 A.L.R.4th 998.

Separation agreements: enforceability of provision affecting property rights upon death of one party prior to final judgment of divorce, 67 A.L.R.4th 237.

Failure to disclose extent or value of property owned as ground for avoiding premarital contract, 3 A.L.R.5th 394.

41 C.J.S. Husband and Wife §§ 60 to 75, 220 to 237.