2019 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 3 - Property Rights
Section 40-3-10 - Priorities for satisfaction of separate debts.

A. The separate debt of a spouse shall be satisfied first from the debtor spouse's separate property, excluding that spouse's interest in property in which each of the spouses owns an undivided equal interest as a joint tenant or tenant in common. Should such property be insufficient, then the debt shall be satisfied from the debtor spouse's one-half interest in the community property or in property in which each spouse owns an undivided equal interest as a joint tenant or tenant in common, excluding the residence of the spouses. Should such property be insufficient, then the debt shall be satisfied from the debtor spouse's interest in the residence of the spouses, except as provided in Subsection B of this section or Section 42-10-9 NMSA 1978. Neither spouse's interest in community property or separate property shall be liable for the separate debt of the other spouse.

B. Unless both spouses join in writing in the creation of the underlying debt or obligation incurred after the marriage, a judgment or other process arising out of such post-marital debt against one spouse alone or both spouses shall not create a lien or otherwise be subject to execution against the interest of the nonjoining spouse in the marital residence, whether held by the spouses as community property, joint tenants or tenants in common.

C. The priorities or exemptions established in this section for the satisfaction of a separate debt must be claimed by either spouse under the procedure set forth in Section 42-10-13 NMSA 1978, or the right to claim such priorities or exemptions is waived as between a spouse and the creditor.

D. This section shall apply only while both spouses are living and shall not apply to the satisfaction of debts after the death of one or both spouses.

History: 1953 Comp., § 57-4A-4, enacted by Laws 1973, ch. 320, § 5; 1975, ch. 246, § 3; 1995, ch. 184, § 1.

The 1995 amendment, effective July 1, 1995, substituted "Subsection B of this section or Section 42-10-9 NMSA 1978" for "Section 24-6-1 NMSA 1953", added Subsection B, redesignated former Subsections B and C as Subsections C and D, and substituted "42-10-13-NMSA 1978" for "24-7-1 NMSA 1953" in Subsection C.

Wife's interest in community can be segregated and subjected to lien. — The public policy of the state of New Mexico on the subject of community property does not preclude a holding that the wife's vested interest in community real property can be segregated and subjected to a statutory judgment lien for a personal tort committed by the wife during the coverture. U.S. Fid. & Guar. Co. v. Chavez, 126 F. Supp. 227 (D.N.M. 1954).

Debt satisfied from community property. — A spouse's separate Arizona debt may be satisfied from that spouse's half interest in community funds in New Mexico. National Bank of Ariz. v. Moore, 2005-NMCA-122, 138 N.M. 496, 122 P.3d 1265, cert. denied, 2005-NMCERT-010, 138 N.M. 494, 122 P.3d 1263.

Power to manage and control and actual availability of entire community personal property distinguished. — Although 40-3-14 NMSA 1978 gives either spouse alone the full power to manage, control, dispose of and encumber the entire community personal property, there exists a distinction between the power to manage and control and actual availability. Since this section provides that a spouse's one-half interest in the community property is available to satisfy his or her separate debts, it does not necessarily follow that the power given by 40-3-14 NMSA 1978 makes the entire community personal property always available to each spouse. Herrera v. Health & Soc. Servs., 1978-NMCA-118, 92 N.M. 331, 587 P.2d 1342, cert. denied sub nom. Human Servs. Dep't v. Herrera, 92 N.M. 353, 588 P.2d 554 (1978).

Separate tort where activity no benefit to community. — If the activity in which the tort-feasor spouse was engaged was of no benefit to the community, the tort is a "separate" tort, collectible only as a separate debt under this section. Dell v. Heard, 532 F.2d 1330 (10th Cir. 1976).

Wife's separate estate not liable for loss in husband's public office. — Where no attempt was made to show that defendant's wife was in any way responsible for the loss appearing in the records of her husband's public office, her separate estate was not liable for her husband's separate obligations. U.S. Fid. & Guar. Co. v. Chavez, 126 F. Supp. 227 (D.N.M. 1954).

Wife's estate exempt from attachment proceedings. — The entire community estate of the defendant and his wife was not subject to his indebtedness, where the wife, so far as the record showed, had no knowledge of any shortage on the part of her husband, nor did she give her consent thereto, or ratify the acts, if any, of her husband, which resulted in the shortage, and neither did the shortage benefit the community estate, so far as was shown; therefore, the vested estate of the wife (intervenor) in and to the community property tracts was exempt from the attachment proceedings instituted by the bonding company, and the community interest of the husband was subject to sale under the attachment, inasmuch as his shortages created a separate liability on his part, resulting in a judgment against him. U.S. Fid. & Guar. Co. v. Chavez, 126 F. Supp. 227 (D.N.M. 1954).

No cause of action against husband by wife's judgment creditor. — Where judgment creditor of wife who committed tort in family car brought suit against husband and argued his cause of action was for an after-the-fact determination that wife's tort was a community tort which rendered the husband's separate property liable for satisfaction of the judgment debt, the court believed the issues presented by appellant under the community property laws did not set forth a cause of action against husband but would be determined if and when judgment creditor proceeded to execute on property belonging to husband. Dell v. Heard, 532 F.2d 1330 (10th Cir. 1976).

One-half of husband's income garnishable for wife's debts. — Considering the wife's vested one-half interest in all of the community property, findings that the creditor had exhausted the possibilities of recovering the debt from wife's separate property, and that husband's income was community property, the trial court correctly concluded that one-half of husband's income from garnishee was available to satisfy wife's debt to creditor. Central Adjustment Bureau, Inc. v. Thevenet, 1984-NMSC-083, 101 N.M. 612, 686 P.2d 954.

Joinder of joint payee spouses in garnishment proceeding. — Where husband is judgment debtor and the judgment of the trial court in a garnishment proceeding indicates that garnishee is indebted on a promissory note to husband and wife, if the note is not a community asset, both payees under the note should be joined so as to adjudicate their respective rights under the note, but if the note is a community asset, wife would be considered a proper but not indispensable party. Jemko, Inc. v. Liaghat, 1987-NMCA-069, 106 N.M. 50, 738 P.2d 922.

Aid to child denied where claim based on mother's interest in community income. — For purposes of determining aid to families with dependent children benefits, where a wife not only has a technical income resulting from her one-half share in the community income, but that one-half share in the community income provides the legal basis for her daughter's legitimate claim on the one-half interest in the community income, the denial of benefits for the child, on the basis that the mother's income exceeded permissible limits, is upheld. Duran v. N.M. Dep't of Human Servs., 1980-NMCA-038, 95 N.M. 196, 619 P.2d 1240.

Intentional action of one spouse may not bar insurance recovery by other. — The intentional burning of a community residence by one spouse will not bar recovery by an innocent spouse for her interest under a fire insurance policy issued to the community. Delph v. Potomac Ins. Co., 1980-NMSC-140, 95 N.M. 257, 620 P.2d 1282.

Law reviews. — For article, "Federal Taxation of New Mexico Community Property," see 3 Nat. Resources J. 104 (1963).

For symposium, "The Effects of an Equal Rights Amendment on the New Mexico System of Community Property: Problems of Characterization, Management and Control," see 3 N.M.L. Rev. 11 (1973).

For symposium, "Equal Rights and the Debt Provisions of New Mexico Community Property Law," see 3 N.M.L. Rev. 57 (1973).

For article, "The Community Property Act of 1973: A Commentary and Quasi-Legislative History," see 5 N.M.L. Rev. 1 (1974).

For comment, "A Comparison of State and Federal Exemptions: 11 U.S.C. § 101-1330 (Supp. II 1978)," see 10 N.M.L. Rev. 431 (1980).

For article, "Survey of New Mexico Law, 1979-80: Commercial Law," see 11 N.M.L. Rev. 69 (1981).

For note, "Community Property - Spouse's Future Federal Civil Service Disability Benefits are Community Property to the Extent the Community Contributed to the Civil Service Fund During Marriage: Hughes v. Hughes," see 13 N.M.L. Rev. 193 (1983).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Liability of community property for antenuptial debts and obligations, 68 A.L.R.4th 877.

Spouse's receipt of "substantial benefit" as condition precluding entitlement to "innocent spouse's" relief under 26 USCS § 6013(E), 134 A.L.R. Fed. 415.