Are you married to someone with a gambling problem or addiction? If so, it is essential to understand how gambling debts are divided during contested and uncontested divorce in New Mexico.
First, it is necessary to understand how community debts are divided during uncontested and contested divorce. Understanding how community debts are divided provides a better understanding for when and how gambling debts are split during contested and uncontested divorce.
COMMUNITY PROPERTY AND DEBT — GAMBLING DEBTS AND CONTESTED AND UNCONTESTED DIVORE IN NEW MEXICO
New Mexico is a community property state. Accordingly, property or debt that is acquired during a marriage is presumed to be the community’s benefit or burden. Moreover, a spouse that argues one spouse is solely responsible for debt incurred during the marriage must overcome this burden by a preponderance of the evidence.
In other words, judges initially see gambling debt that is incurred during the marriage as being both spouse’s responsibility. With that said, there are special circumstances when one spouse can be solely responsible for gambling debt that is built during a marriage.
WASTE OF COMMUNITY ASSETS — GAMBLING DEBT DURING CONTESTED AND UNCONTESTED DIVORCE
Debt that is incurred during a marriage can be one spouse’s separate debt when it is considered a waste of community assets. To prove that assets were wasted, one spouse must show that special circumstances exist. For example, the spouse must demonstrate a breach of fiduciary duty or violation of court order.
A breach of fiduciary duty can be found when one spouse gains an advantage through misrepresentation, concealment, or adverse pressure. Beals v. Ares, 1919-NMSC-067, ⁋ 76. Otherwise, once community funds are spent, they are not available assets that can be split during a contested and uncontested divorce.
In other words, a spouse can demonstrate a breach of fiduciary duty — and resulting wasted assets — by demonstrating concealment. For instance, a spouse could present evidence that he/she was unaware of the other spouse’s spending due to concealment, or misrepresentation.
Ultimately, the spouse must overcome the presumption of community property by a preponderance of the evidence. Otherwise, the gambling debt will be considered community debt.
Let’s explore community debt by examining a recent divorce case that involved gambling debts.
RECENT NEW MEXICO CASE REGARDING GAMBLING DEBT
Gambling debt was recently explored in Autrey v. Autrey. In Autrey, Wife argued that Husband was responsible for repaying the community for gambling losses that were incurred during the marriage. Based on the law discussed above, the court ultimately held that Husband’s gambling debt was community debt, and not Husband’s separate debt.
In doing so, the court first considered that Wife had the burden of proving that the debt was separate and not community. In rejecting Wife’s argument, the court reasoned that Wife failed to establish that Husband used community funds to pay for his gambling losses without her agreement. Moreover, Wife failed to show the actual amount of Husband’s gambling losses.
For instance, Husband testified that Wife accompanied him on gambling addiction. Moreover, Husband testified that the couple won substantial amounts, which offset the losses. In other words, Husband testified that Wife participated in the gambling. Moreover, Husband stated that the couple won significant amounts while gambling.
In rejecting Wife’s argument, the court reasoned that Wife failed to provide any evidence, other than her own testimony, regarding:
- The actual amount of net losses;
- The losses were caused by Husband and not Wife; and
- Wife was unaware that the losses were being paid with community money.
In the end, the court ruled that Wife failed to establish the “ . . . essential elements of a breach of fiduciary duty, lack of consent by Wife, or even the amount of the separate debt, necessary to establish a right to reimbursement.” See Autrey v. Autrey.
GAMBLING DEBT IS ONE SPOUSE’S SOLE AND SEPARATE DEBT AND RESPONSIBILITY
On the other hand, the court may find that gambling debt is a spouse’s separate debt when:
- One spouse does not participate in the gambling;
- The absent spouse does not receive a benefit from the gambling;
- A spose did not agree to the gambling; and
- The gambling was either misrepresented or concealed.
Based on these circumstances, in one case, an Albuquerque judge ruled that one spouse was responsible for gambling debt incurred during the couple’s marriage. In other words, the court examines all of the circumstances when determining if gambling debt is community debt.
HOW ARE SEPARATE DEBTS DIVIDED DURING UNCONTESTED AND CONTESTED DIVORCE?
Are you wondering what happens when the court finds one spouse is fully responsible for debt incurred during a contested and uncontested divorce? In this situation, the judge has broad power to decide how the separate gambling debt is split.
On one hand, the judge could order the spouse to pay the other spouse a specific amount of money. On the other hand, the judge could grant one spouse a large slice of community property, such as retirement, home equity, etc. Like most family law issues — it all depends. It depends on the judge. It depends on the facts. Finally, it depends on the “totality of the circumstances.”
Ultimately, the assigned judge decides how the separate debt is split and repaid.
CONTESTED AND UNCONTESTED DIVORCE LAWYERS FOR MEN OR WOMEN IN ALBUQUERQUE, NEW MEXICO
Are you considering a divorce in Albuquerque, New Mexico? Do you know or suspect that your spouse has considerable gambling debts? If so, it is essentially to immediately speak with one of Albuquerque’s top divorce attorneys. For over a decade, Sanchez has handled uncontested divorces all across New Mexico, including: Albuquerque, Santa Fe, Taos, Rio Rancho, Los Lunas/Belen, and Gallup/Grants.
Sanchez has also handled contested divorces across New Mexico, including: Albuquerque, Santa Fe, Socorro/Estancia, Rio Rancho, Los Lunas/Belen, and Gallup/Grants. Talk to a skilled and successful NM divorce attorney. Talk to (505) SANCHEZ.
