2018 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 3 - Property Rights
Section 40-3-5 - Disposition of real property without joinder where spouse is prisoner of war/person missing-in-action.
A. If a spouse is reported by the United States department of defense to be a prisoner of war/person missing-in-action, the other spouse may, not less than six months after such report, file a petition of the facts which make it desirable for the petitioning spouse to engage in a transaction for which joinder of both spouses is required by Section 57-4-3 NMSA 1953.
B. The petition shall be filed in a district court of any county in which real property described in the petition is located.
C. The district court shall appoint a guardian ad litem for the prisoner of war/person missing-in-action and shall allow such guardian a reasonable fee for his services.
D. A notice, stating that the petition has been filed and specifying the date of the hearing, accompanied by a copy of the petition shall be issued and served on the guardian ad litem and shall be published once each week for four successive weeks in a newspaper of general circulation in the county in which the proceeding is pending. The last such publication shall be made at least twenty days before the hearing.
E. After the hearing, the district court may allow the petitioning spouse alone to engage in a transaction for which joinder of both spouses is required by Section 57-4-3 NMSA 1953 upon such terms and conditions as may be appropriated [appropriate] or necessary to protect the interests of the absent spouse.
F. Any sale, lease, conveyance or encumbrance authorized by the district court pursuant to Subsection E of this section shall be confirmed by order of the district court, and that order of confirmation may be recorded in the office of the county clerk of the county where any property affected thereby is situated.
History: 1953 Comp., § 57-4-11, enacted by Laws 1973, ch. 105, § 1.
Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Compiler's notes. — Section 57-4-3, 1953 Comp., cited in Subsections A and E, was repealed by Laws 1973, ch. 320, § 14. For present provisions, see 40-3-13 to 40-3-16 NMSA 1978.
Cross references. — For section concerning disposition and management of real property without joinder and management of community personal property subject to management of one spouse alone where spouse has disappeared, see 40-3-16 NMSA 1978.
Law reviews. — For article, "The Community Property Act of 1973: A Commentary and Quasi-Legislative History," see 5 N.M.L. Rev. 1 (1974).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Power of either spouse, without consent of other, to make gift of community property or funds to third party, 17 A.L.R.2d 1118.
41 C.J.S. Husband and Wife § 168.
