2019 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 4 - Dissolution of Marriage
Section 40-4-4 - Venue; jurisdiction over property.

Any proceeding for the dissolution of marriage, division of property, disposition of children or alimony, as provided for in this chapter, may be instituted in the county where either of the parties resides. In such proceedings, the court shall have jurisdiction of all property of the parties, wherever located or situated in the state.

History: Laws 1901, ch. 62, § 24; Code 1915, § 2775; C.S. 1929, § 68-503; 1941 Comp., § 25-703; 1953 Comp., § 22-7-3; Laws 1967, ch. 112, § 1; 1973, ch. 319, § 4.

Compiler's notes. — "This chapter" refers to Laws 1973, ch. 319, §§ 1 to 14, compiled as 40-4-1 to 40-4-7, 40-4-10, 40-4-12 to 40-4-14, 40-4-19 and 40-4-20 NMSA 1978.

Section defines powers of court in regard to division of community property. Cauthen v. Cauthen, 1949-NMSC-057, 53 N.M. 458, 210 P.2d 942.

Authority to void attorneys' charging lien. — In a domestic relations suit, the trial court had authority to void notice of attorneys' charging lien recorded on the parties' residence and to allocate the proceeds, giving priority to the claims of court-appointed experts if the facts and circumstances justified it. Philipbar v. Philipbar, 1999-NMCA-063, 127 N.M. 341, 980 P.2d 1075.

Venue determined from complaint and character of judgment. — Under this section venue is generally determined from the complaint and character of the judgment which may be rendered thereon. Davey v. Davey, 1967-NMSC-002, 77 N.M. 303, 422 P.2d 38.

Exclusive jurisdiction over property not indefinite jurisdiction. — A court acquires exclusive jurisdiction over the property involved for purposes of a division of the property, or a modification of the decree as to payments for alimony, maintenance and education of the minor children, but this does not mean that such court may retain such jurisdiction indefinitely or that another court of concurrent jurisdiction may not acquire jurisdiction over the property at a time when the proceeding is apparently settled. Ortiz v. Gonzales, 1958-NMSC-109, 64 N.M. 445, 329 P.2d 1027.

Jurisdiction over marital property where stock not disclosed. — Where divorced wife made motion in one division of district court to vacate divorce decree because husband had failed to disclose corporate stock, issuance of order restraining disposition of such stock conferred jurisdiction of the res on the divorce court and subjected stock to the jurisdiction of the court having jurisdiction of the marital status of the parties even though the court did not take actual possession of the res, although execution had issued from another division of district court to be levied on stock to satisfy a judgment against husband. Greathouse v. Greathouse, 1958-NMSC-032, 64 N.M. 21, 322 P.2d 1075.

Jurisdiction over separate property. — In proceedings for dissolution of marriage, the trial court has complete jurisdiction over all separate as well as community property located in New Mexico. Trego v. Scott, 1998-NMCA-080, 125 N.M. 323, 961 P.2d 168, cert. denied, 125 N.M. 322, 961 P.2d 167.

Waiver of change of venue right where no objection made. — Where appellant at no time prior to the date and time the cause was set for trial objected to its being held in Bernalillo county, and her participation in the hearings in the cause in Bernalillo county without objection together with her action in setting motions filed by her for hearing in Bernalillo county led opposing counsel and the court to believe that she had no objection to trial in Bernalillo county, and no reason was given why appellant did not promptly after receiving notice of hearing on the merits insist that the trial be held in Valencia county, and no prejudice was shown, appellant waived her right to insist upon the trial being held in Valencia county. Davey v. Davey, 1967-NMSC-002, 77 N.M. 303, 422 P.2d 38.

No adjudication of property where not sought. — Where plaintiff could have sought a division of the property of the parties in the divorce case but did not do so, and the court did not consider the issue of the property, there was no adjudication thereon. Zarges v. Zarges, 1968-NMSC-151, 79 N.M. 494, 445 P.2d 97.

Advisory proceeding not necessary in property division. — In seeking an equal division of the community property, advisory proceedings are not necessary but may be employed by the court if they are deemed helpful, since any reasonable means to that end may be used. Cauthen v. Cauthen, 1949-NMSC-057, 53 N.M. 458, 210 P.2d 942.

First wife estopped from claiming husband's property in second divorce where jurisdiction acquired. — Where San Miguel court granted divorce decree in February, 1949, retaining jurisdiction of case upon settlement of community property, and husband remarried in August, 1949, and husband and first wife entered into agreement in September, 1949, disposing of undivided interest in hotel, and second wife subsequently filed for and obtained a divorce in Bernalillo court in November, 1950; the fact that first wife's motion for a hearing in the San Miguel court for further proof concerning community property was not made until six months after the divorce decree in second court, and over two years after divorce in first court, she was estopped as against the second wife to claim the agreement was not a transmutation of community property into separate property liable for husband's independent obligations; and until the San Miguel court took some affirmative action, such as a review of the September agreement to determine the equities of the parties therein, the second court could acquire jurisdiction over the sole and separate property of the husband. Ortiz v. Gonzales, 1958-NMSC-109, 64 N.M. 445, 329 P.2d 1027.

Law reviews. — For symposium, "Equal Rights in Divorce and Separation," see 3 N.M.L. Rev. 118 (1973).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 24 Am. Jur. 2d Divorce and Separation §§ 218, 219, 587.

Change of residence pendente lite, jurisdiction as affected by, 7 A.L.R.2d 1414.

Trial court's jurisdiction as to alimony or maintenance pending appeal of matrimonial action, 19 A.L.R.2d 703.

Jurisdiction on constructive or substituted service, in divorce or alimony action, to reach property within state, 10 A.L.R.3d 212.

Power of divorce court to deal with real property located in another state, 34 A.L.R.3d 962.

Pension or retirement benefits as subject to award or division by court in settlement of property rights between spouses, 94 A.L.R.3d 176.

Spouse's professional degree or license as marital property for purposes of alimony, support, or property settlement, 4 A.L.R.4th 1294.

Divorce: order requiring that party not compete with former marital business, 59 A.L.R.4th 1075.

Divorce property distribution: real estate or trust property in which interest vested before marriage and was realized during marriage, 60 A.L.R.4th 217.

Divorce and separation: effect of court order prohibiting sale or transfer of property on party's right to change beneficiary of insurance policy, 68 A.L.R.4th 929.

Divorce: propriety of using contempt proceeding to enforce property settlement award or order, 72 A.L.R.4th 298.

Valuation of goodwill in accounting practice for purposes of divorce court's property distribution, 77 A.L.R.4th 609.

Divorce and separation: goodwill in accounting practice as property subject to distribution on dissolution of marriage, 77 A.L.R.4th 645.

Valuation of goodwill in law practice for purposes of divorce court's property distribution, 77 A.L.R.4th 683.

Accrued vacation, holiday time, and sick leave as marital or separate property, 78 A.L.R.4th 1107.

Divorce and separation: goodwill in law practice as property subject to distribution on dissolution of marriage, 79 A.L.R.4th 171.

Doctrine of forum non conveniens: assumption or denial of jurisdiction of action involving matrimonial dispute, 55 A.L.R.5th 647.

27A C.J.S. Divorce §§ 99, 111; 27B C.J.S. Divorce § 511.