N.M. Stat. » Chapter 40 — Domestic Affairs
New Mexico Statutes

N.M. Stat. § 40-2-8 (2026)

[Extent of mutual alteration of legal relations.]

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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, 2005-NMCA-033, 109 P.3d 295.
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Edens v. Edens, 2005-NMCA-033, 109 P.3d 295. · 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-025. · 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, 6 N.M. 516. · 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-028. · 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, 3 N.M. 407. · 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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