New Mexico Statutes

N.M. Stat. § 40-2-8 (2026)

[Extent of mutual alteration of legal relations.]

✓ current as of May 2026

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A husband and wife cannot by any contract with each other alter their legal relations,
except of their property, and except that they may agree in writing, to an immediate
separation, and may make provisions for the support of either of them and of their
children during their separation.

History: Laws 1907, ch. 37, § 5; Code 1915, § 2782; C.S. 1929, § 68-510; 1941 Comp.,
§ 65-212; 1953 Comp., § 57-2-12.

                                     ANNOTATIONS

Cross references. — For suit for division of property, see 40-4-3, 40-4-4 and 40-4-20
NMSA 1978.

Contracts altering legal relations generally void. — Nuptial contract which attempts
to alter the legal relations of the parties are generally void for want of consideration, or
as against public policy. Hurley v. Hurley, 1980-NMSC-067, 94 N.M. 641, 615 P.2d 256,
overruled on other grounds by Ellsworth v. Ellsworth, 1981-NMSC-132, 97 N.M. 133,
637 P.2d 564.
Section cannot be annulled by antenuptial agreement. — This section states a
public policy which cannot be annulled by an antenuptial agreement. Tellez v. Tellez,
1947-NMSC-058, 51 N.M. 416, 186 P.2d 390.

Questions relating to construction, operation and effect of separation agreements
are, ordinarily, controlled by rules applicable to contracts generally. Adkins v. Adkins,
1961-NMSC-149, 69 N.M. 193, 365 P.2d 439.

Separation agreement provision subject to court discretion in divorce case. — A
separation agreement in New Mexico, though binding upon the parties during such time
as they are separated as husband and wife, when submitted in a divorce case for
consideration of the court, is subject to such action as the court in its discretion may
take, and the court may disregard any previous agreement for support and make such
award as in the discretion of the court may seem just and fair. Scanlon v. Scanlon,
1955-NMSC-035, 60 N.M. 43, 287 P.2d 238.

Section inapplicable to marriage settlement agreement. — Where the parties
entered into a marital settlement agreement applicable to their relationship after
dissolution of their marriage, this section has nothing to do with the agreement. Edens
v. Edens, 2005-NMCA-033, 137 N.M. 207, 109 P.3d 295, cert. denied, 2005-NMCERT-
003, 137 N.M. 290, 110 P.3d 506.

Agreement void where contrary to public policy. — Provisions of a separation
contract which would cut the plaintiff off without support from her former spouse in the
case of spouse's remarriage though plaintiff remained single, or in the case of spouse's
change of occupation, are void as contrary to public policy. Scanlon v. Scanlon, 1955-
NMSC-035, 60 N.M. 43, 287 P.2d 238.

Alimony provision subject to change. — In a separation agreement the provisions for
alimony are entirely severable from the provisions as to property, and where the
separation agreement was merged in the decree of divorce and became a part thereof,
the provision for alimony is, by reason of the statute authorizing the court to modify
provision for alimony at any time, subject to change. Scanlon v. Scanlon, 1955-NMSC-
035, 60 N.M. 43, 287 P.2d 238.

Contract for husband to pay wife for care void. — A contract whereby the husband
agrees to pay his wife for his care, which is a part of her duties as a wife, is without
consideration, against public policy and void. Tellez v. Tellez, 1947-NMSC-058, 51 N.M.
416, 186 P.2d 390.

Parties cannot object to award based on agreement. — Where awarding the
community property in divorce proceeding was but the carrying out of the agreement of
the parties, neither can object to such disposition. Miller v. Miller, 1928-NMSC-002, 33
N.M. 132, 262 P. 1007.
Law reviews. — For comment on Trujillo v. Padilla, 79 N.M. 245, 442 P.2d 203 (1968),
see 9 Nat. Resources J. 101 (1969).

For symposium, "The Effects of an Equal Rights Amendment on the New Mexico
System of Community Property: Problems of Characterization, Management and
Control," see 31 N.M.L. Rev. 11 (1973).

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

For article, "Tax Consequences of Divorce in New Mexico," see 5 N.M.L. Rev. 233
(1975).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Injured party's release of tortfeasor as
barring spouse's action for loss of consortium, 29 A.L.R.4th 1200.

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.

Validity, construction, and application of provision in separation agreement affecting
distribution or payment of attorneys' fees, 47 A.L.R.5th 207.

Notes of Decisions

Cited in 8 cases, 1980–2014 · leading case: Edens v. Edens, 109 P.3d 295 (N.M. Ct. App. 2005).

Sort: Relevance Newest Treatment

Edens v. Edens, 109 P.3d 295 (N.M. Ct. App. 2005). · cites it 9× “Motion for Summary Judgment {26} Husband contends the trial court should have granted his motion for summary judgment, which argued that (1) the trial court should exercise its inherent or continuing jurisdiction to modify or terminate the MSA’s alimony provision pursuant to…”

Swink v. Fingado, 850 P.2d 978 (N.M. 1993). · cites it 2× “which either might, if unmarried____” Section 40-2-8 provides: “A husband and wife cannot by any contract with each other alter their legal relations, except of their property____” (Emphasis added.”

Hurley v. Hurley, 615 P.2d 256 (N.M. 1980). · cites it 2× “Further, we note that such promises are prohibited by Section 40-2-8, N.M.S.A.1978. This Court has previously held that nuptial contracts which attempt to alter the legal relations of the parties “are generally held to be void for want of consideration, or against public policy.”

Matter of Adoption of John Doe, 648 P.2d 798 (N.M. Ct. App. 1982). “2 See also § 40-2-8, N.M.S.A.1978. In Huey, however, the custody agreement was not a private contract, but rather an agreement with the state itself through its Health and Social Services Department and is thus distinguishable from the case here.”

State v. Parvilus, 2013 NMCA 25 (N.M. Ct. App. 2012). · cites it 2× “, 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). · cites it 2× “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 others); NMSA 1978, §§ 40-2-4 to -7 (1907, as amended…”

State v. Parvilus, 2014 NMSC 28 (N.M. 2014). · cites it 2× “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 others); NMSA 1978, §§ 40-2-4 to -7 (1907, as amended…”

State v. Parvilus, 2013 NMCA 025 (N.M. Ct. App. 2013). · cites it 2× “, 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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