Community or Sole and Separate
The general rules for community property and sole and separate property are found in the following statute. However, your situation could be different depending on the facts of your situation. There are certain twists that may apply in your case. You should consult with an attorney about your particular situation. The following is legal information, not advice.
Statute 40-3-8. Classes of property.
A. "Separate property" means:
(1) property acquired by either spouse before marriage or after entry of a decree of dissolution of marriage;
(2) property acquired after entry of a decree entered pursuant to Section 40-4-3 NMSA 1978, unless the decree provides otherwise;
(3) property designated as separate property by a judgment or decree of any court having jurisdiction;
(4) property acquired by either spouse by gift, bequest, devise or descent; and
(5) property designated as separate property by a written agreement between the spouses, including a deed or other written agreement concerning property held by the spouses as joint tenants or tenants in common in which the property is designated as separate property.
But once a couple marries, the general rule is:
B. Except as provided in Subsection C of this section, "community property" means property acquired by either or both spouses during marriage which is not separate property. Property acquired by a husband and wife by an instrument in writing whether as tenants in common or as joint tenants or otherwise shall be presumed to be held as community property unless such property is separate property within the meaning of Subsection A of this section.
What if a couple was married somewhere else, lived there a long time, and then moved to New Mexico?
C. "Quasi-community property" means all real or personal property, except separate property as defined in Subsection A of this section, wherever situated, heretofore or hereafter acquired in any of the following ways:
(1) by either spouse while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in this state at the time of its acquisition; or
(2) in exchange for real or personal property, wherever situated, which would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition.
D. For purposes of division of property incident to a dissolution of marriage or a legal separation under Section 40-4-3 NMSA 1978, quasi-community property shall be treated as community property, if both parties are domiciliaries of New Mexico at the time of the dissolution or legal separation proceeding.
What if separate property produces income or profit, or community property produces income or profit, how is that income or profit characterized?
Generally, the answer is:
E. "Property" includes the rents, issues and profits thereof.