Since the Obergefell v. Hodges verdict of 2015, domestic partnership agreements (also known as “cohabitation agreements”) have been hotly debated in New Mexico.

In that ruling, the Supreme Court of the United States ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

Domestic partnership agreements are often referred to in same-sex relationships but the issue extends beyond same-sex couples and may affect any partners in relationships outside of marriage.

It is important if you are considering a domestic partnership agreement that you understand the rules in New Mexico. The state does not recognize common-law marriage or cohabitation and will only recognize domestic partnership agreements if the parties created a legal agreement in another state and moved together to New Mexico.

Domestic partnership agreements should be drawn up with a comprehensive understanding of the potential legal challenges that can be mounted with such agreements. They may be invalidated by the courts if there is a “disparity in bargaining power” when the agreement was created or if they include unreasonable terms that violate public policy.

A legally binding agreement requires the guidance and expertise of an attorney experienced in such matters. At Legal Solutions of New Mexico, we ensure that your agreement holds up in court.

What is a domestic partnership agreement?

A domestic partnership agreement is essentially a contract between two parties who live together without being legally married and who wish to outline the terms of their arrangement.

This may happen for one of two main reasons:

1. They cannot have their union legally recognized in New Mexico
2. They choose not to get married for personal reasons

If a couple registers a domestic partnership with the government, they establish a formal legal relationship. In doing so, they are afforded some of the rights and responsibilities associated with a marriage contract.

Such relationships generally provide more rights to a couple than with “common-law” marriages (though these are not recognized in New Mexico) but fewer than with full marriage rights.

As mentioned already, the State of New Mexico recognizes domestic partnerships established in jurisdictions where such unions are legally permitted.

Generally, domestic partnership agreements cover the following key areas:

• Guidelines for living together (e.g., chores and household duties)
• Joint property ownership
• Mutual financial obligations (this can be as detailed as who pays for utilities)
• Sharing of assets
• Pension benefits
• Division of assets following a death
• Raising children together
• Any other issue deemed worthy of inclusion

Ultimately, a domestic partnership agreement can help people who are intimately connected and want their relationship to be recognized in some legal manner. The team at Legal Solutions of New Mexico can help you create a legally binding domestic partnership agreement.

How do you become a domestic partner?

The general requirements for a couple who have chosen to become domestic partners are as follows:

• The two partners must live together
• They must agree to be jointly responsible for each other's basic living expenses during the domestic partnership
• Neither partner may be married or a member of another domestic partnership
• They must not be related in a way which would prevent them from being married to each other
• They must both be over 18
• They must sign an agreement

Without meeting each of these requirements, a partnership will be considered a relationship without any special legal standing.

Property rights in domestic partnerships

Domestic partners who live together for many years are likely to share property ownership just like with two spouses in a marriage. The names of both partners may be on the deeds and financial accounts may be jointly owned.

If this is the case in your relationship, you may find it beneficial to review the designated ownership for these assets and ensure that they tally with what you intend for the future — otherwise they can be changed according to the options available.

This is all part of working on a domestic partnership agreement with a qualified attorney.

Health care and power of attorney with domestic partnerships

Domestic partners face the same problems as any couple if one individual faces a serious health problem or loses mental capacity.

It is important, therefore, to address the subject of who makes healthcare decisions as well as financial decisions in the case of serious illness or incapacity.

A power of attorney or health care directive grants the partner the authority to make medical decisions on the other person’s behalf and to access medical records/reports. With the right documentation, this authority can be extended to making financial decisions if necessary.

A power of attorney can be discussed with one of our attorneys first so that you can decide on precisely when (under what circumstances) the authority goes into effect.

Get help with your domestic partnership agreement in New Mexico

Domestic partnership agreements must not only be specific and detailed. They must be legally enforceable to be of any use.

If you are unsure whether your agreement will be recognized by the New Mexico courts or have any other questions about how to have your relationship legally recognized here, talk your situation through with an attorney at Legal Solutions of New Mexico

Start with a free consultation. Call 505-445-4444 or email us.