Community Property Rights

New Mexico is a community property state, which means that assets and property acquired during a marriage are considered to be jointly owned by both spouses. In the event of divorce, this applies to retirement benefits under the Educational Retirement Act (ERA).

ERB members' contributions are protected from legal assignment or attachment with two major exceptions: community property settlements and child support obligations. Under the terms of the ERA, the Educational Retirement Board can only complete the division of the community interest in retirement benefits when the pension, refund or death benefits are payable. In other words, if a member is not eligible to retire at the time of divorce, the ERB cannot pay the non-member spouse his or her interest in the retirement account. No benefits can be divided unless ERB is served with an acceptable final court order and the benefits are eligible for distribution to the ERB member. Orders dividing retirement benefits are subject to review and approval by the ERB to insure that the order complies with law and can be administered.

Upon request, the ERB will provide information to members who are going through a divorce, including an account statement, a history of accumulated quarterly salary and contributions, and beneficiary information. Members can click here to download a model order with attorney instructions from this ERB web site to help them draft an acceptable court order in compliance with the Educational Retirement Act.

This information can also be found on page 21 of the member handbook.