New Mexico Statutes
N.M. Stat. § 40-2-4 (2026)
[Execution of marriage settlement and separation
✓ current as of May 2026
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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.
ANNOTATIONS
Cross references. — 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.Notes of Decisions
Cited in 13
cases, 1965–2018 · leading case: Devney v. Devney, 886 N.W.2d 61 (Neb. 2016).
Devney v. Devney, 886 N.W.2d 61 (Neb. 2016). “11 (2014); N.M. Stat. Ann. §§ 40-2-4 and 40-2-8 (2006); N.”
Herrera v. Herrera, 974 P.2d 675 (N.M. Ct. App. 1999). “At the conclusion of the hearing, the trial court verbally denied Wife’s application. Husband and Wife appeal.”
Griego v. Oliver, 2014 NMSC 003 (N.M. 2013). “Section 40-2-4. {35} NMSA 1978, Chapter 40, Article 3 defines the property rights of a married couple and establishes equality in property ownership by enacting the Community Property Act, NMSA 1978, §§ 40-3-6 to -17 (1973, as amended through 1997).”
Christiansen v. Christiansen, 666 P.2d 781 (N.M. 1983). “The trial court ruled, however, that this agreement was inadmissible because it had not been properly acknowledged pursuant to NMSA 1978, Section 40-2-4. The trial court also held that the parties were jointly responsible for providing post-minority education for their child,…”
Gilmore v. Gilmore, 750 P.2d 1114 (N.M. Ct. App. 1988). “See NMSA 1978, § 40-2-4 to -9 (Repl.1986). Although § 40-4-3 does not expressly state the court can grant a legal separation, as do the statutes in some of the cases cited by husband, we find the outcome to be the same.”
State v. Parvilus, 2013 NMCA 25 (N.M. Ct. App. 2012). “, NMSA 1978, § 40-2-1 (1907) (stating that “[h]usband and wife contract toward each other obligations of mutual respect, fidelity and support”); NMSA 1978, § 40-2-2 (1907) (explaining contract rights of husband and wife); NMSA 1978, §§ 40-2-4 to -7 (1907, as amended through…”
State v. Parvilus, 2014 NMSC 028 (N.M. 2014). “, NMSA 1978, § 40-2-1 (1907) (stating that “[h]usband and wife contract toward each other obligations of mutual respect, fidelity and support”); NMSA 1978, § 40-2-2 (1907) (specifying the rights of husband and wife to contract mutually or the right of either to contract with…”
Fleming v. Comm'r, 47 T.C.M. 1281 (Tax Ct. 1984). “According to respondent, because the agreement is not in evidence, and because petitioner's testimony was "vague," there is no evidence to support petitioner's contention that community property was converted to Barboa's separate property.”
Griego v. Oliver, 2014 NMSC 3 (N.M. 2013). “Section 40-2-4. {35} NMSA 1978, Chapter 40, Article 3 defines the property rights of a married couple and establishes equality in property ownership by enacting the Community Property Act, NMSA 1978, §§ 40-3-6 to -17 (1973, as amended through 1997).”
State v. Parvilus, 2014 NMSC 28 (N.M. 2014). “, NMSA 1978, § 40-2-1 (1907) (stating that “[h]usband and wife contract toward each other obligations of mutual respect, fidelity and support”); NMSA 1978, § 40-2-2 (1907) (specifying the rights of husband and wife to contract mutually or the right of either to contract with…”
Chavarria v. Chavarria (N.M. Ct. App. 2018). “16 {3} In response, Petitioner continues to argue that his signature is required and that, 17 absent his signature, the agreement does not satisfy NMSA 1978, Section 40-2-4 18 (1907). Petitioner does not, however, address the fact that there was a trial and a 19 presentment…”
State v. Parvilus, 2013 NMCA 025 (N.M. Ct. App. 2013). “, NMSA 1978, § 40-2-1 (1907) (stating that “[hjusband and wife contract toward each other obligations of mutual respect, fidelity and support”); NMSA 1978, § 40-2-2 (1907) (explaining contract rights of husband and wife); NMSA 1978, §§ 40-2-4 to -7 (1907, as amended through…”
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