2020 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 4 - Dissolution of Marriage
Section 40-4-1 - Dissolution of marriage.

On the petition of either party to a marriage, a district court may decree a dissolution of marriage on any of the following grounds:

A. incompatibility;

B. cruel and inhuman treatment;

C. adultery; or

D. abandonment.

History: 1953 Comp., § 22-7-1, enacted by Laws 1973, ch. 319, § 1.

Cross references. — For annulment, see 40-1-9 NMSA 1978.

For provisions of the Uniform Child-Custody Jurisdiction and Enforcement Act, see 40-10A-101 to 40-10A-403 NMSA 1978.

I. GENERAL CONSIDERATION.

Forum non conveniens. — Where jurisdiction, residence, and incompatibility are shown to exist, a New Mexico trial court has no discretionary right to deny a divorce. The plaintiff's choice of forum should not be disturbed except for weighty reasons. Spruyt v. Spruyt, 1993-NMSC-020, 115 N.M. 405, 851 P.2d 1072.

Court not to deny divorce where ground shown. — The legislature has power to prescribe the causes affording grounds for divorce, and where a statutory ground is shown to exist, the court has no discretionary right to deny a divorce. State ex rel. DuBois v. Ryan, 1973-NMSC-097, 85 N.M. 575, 514 P.2d 851; Buckner v. Buckner, 1981-NMSC-007, 95 N.M. 337, 622 P.2d 242.

II. INCOMPATIBILITY.

Court must decree divorce upon finding of incompatibility. — The legislature, acting properly within its powers, has established "incompatibility" as a ground for divorce and once such a finding is made that it exists, a divorce decree must be entered. Garner v. Garner, 1973-NMSC-067, 85 N.M. 324, 512 P.2d 84.

Court not vacating incompatibility finding cannot vacate divorce award. — The trial court, having found husband and wife to be incompatible, having awarded a divorce on that ground, and not having vacated that finding, lacked discretion and power to vacate the award. State ex rel. DuBois v. Ryan, 1973-NMSC-097, 85 N.M. 575, 514 P.2d 851.

Irreconcilableness important factor in incompatibility. — Although incompatibility is difficult, if not impossible, to define with exactness, irreconcilableness is an important factor to be considered in deciding incompatibility. State ex rel. DuBois v. Ryan, 1973-NMSC-097, 85 N.M. 575, 514 P.2d 851.

Misconduct, fault or blame not significant if incompatibility exists. — Either husband or wife may secure a divorce on the ground of incompatibility regardless of whether either, both or neither has been guilty of misconduct, and regardless of whether either, both or neither is at fault or to blame. Misconduct, fault or blame is of no significance, if in fact incompatibility exists. State ex rel. DuBois v. Ryan, 1973-NMSC-097, 85 N.M. 575, 514 P.2d 851.

Doctrine of recrimination as defense is abolished in proceedings where a divorce is sought on the grounds of incompatibility. Henceforth, evidence of any recriminatory act is only admissible to the extent that such act may have weight as proof on the issue of incompatibility as a ground for divorce. Garner v. Garner, 1973-NMSC-067, 85 N.M. 324, 512 P.2d 84; State ex rel. DuBois v. Ryan, 1973-NMSC-097, 85 N.M. 575, 514 P.2d 851.

Wife may establish separate residence where incompatibility exists. — Where incompatibility exists a wife is justified, under this act, in establishing a separate residence and domicile from that of her husband even though a divorce decree has not been granted or a divorce proceeding instituted. Bassett v. Bassett, 1952-NMSC-100, 56 N.M. 739, 250 P.2d 487.

III. CRUEL AND INHUMAN TREATMENT.

Physical cruelty not essential to support decree. — A finding that a plaintiff established physical cruelty, as for instance, an impairment of health by reason of acts found to constitute cruelty, is not essential to support a decree on the ground of cruelty. Holloman v. Holloman, 1945-NMSC-036, 49 N.M. 288, 162 P.2d 782.

IV. ABANDONMENT.

Adultery subsequent to abandonment as bar to divorce suit. — Adultery by a wife subsequent to abandonment by her husband is bar to the wife's suit for divorce. Chavez v. Chavez, 1935-NMSC-077, 39 N.M. 480, 50 P.2d 264 (decided under prior law).

V. GROUNDS UNDER PRIOR LAWS.

Husband's failure to support. — Where it appeared that a husband had the mental and physical ability to provide for the support of his family, and neglected to do so, or was indifferent, the wife was entitled to a divorce. Taylor v. Taylor, 1915-NMSC-002, 20 N.M. 13, 145 P. 1075 (decided under prior law).

Wife convicted of felony and imprisoned. — Where a wife was convicted of a felony, and was legally committed to the warden of the penitentiary, who sent her to the governor who issued to her a conditional pardon, she was "imprisoned" within the meaning of this section. Klasner v. Klasner, 1918-NMSC-021, 23 N.M. 627, 170 P. 745 (decided under prior law).

Law reviews. — For article, "Annulment of Marriages in New Mexico: Part II - Proposed Statute," see 2 Nat. Resources J. 270 (1962).

For article, "New Mexico Community Property Law and the Division of Retirement Plan Benefits Pursuant to the Dissolution of Marriage," see 13 N.M.L. Rev. 641 (1983).

For symposium, "The Impact of the Equal Rights Amendment on the New Mexico Criminal Code," see 3 N.M.L. Rev. 106 (1973).

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

For annual survey of New Mexico law relating to domestic relations, see 12 N.M.L. Rev. 325 (1982).

For article, "Arbitration of Domestic Relations Disputes in New Mexico," see 16 N.M.L. Rev. 321 (1986).

For note, "Tort Law - Intentional Infliction of Emotional Distress in the Marital Context: Hakkila v. Hakkila," see 23 N.M.L. Rev. 387 (1993).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 24 Am. Jur. 2d Divorce and Separation §§ 12, 19, 20 to 128.

Refusal of sexual intercourse as ground for divorce, 82 A.L.R.3d 660.

Avoidance of procreation of children as ground for divorce or separation, 4 A.L.R.2d 227.

What constitutes duress sufficient to warrant divorce, 16 A.L.R.2d 1430.

Insanity as affecting right to divorce or separation on other grounds, 19 A.L.R.2d 144.

Conviction in another jurisdiction as within statute making conviction of crime a ground of divorce, 19 A.L.R.2d 1047.

Acts or omissions of spouse causing other spouse to leave home as desertion by former, 19 A.L.R.2d 1428.

Recrimination as defense to divorce sought on ground of incompatibility, 21 A.L.R.2d 1267.

Pension of husband as resource which court may consider in determining amount of alimony, 22 A.L.R.2d 1421.

Insanity as substantive ground of divorce or separation, 24 A.L.R.2d 873.

Racial, religious or political differences as ground for divorce, separation or annulment, 25 A.L.R.2d 928.

Wife's failure to follow husband to new domicil as constituting desertion or abandonment as ground for divorce, 29 A.L.R.2d 474.

What amounts to habitual intemperance, drunkenness and the like, within statute relating to substantive grounds for divorce, 29 A.L.R.2d 925.

Charge of insanity, or attempt to have spouse committed to mental institutions, as ground for divorce, 33 A.L.R.2d 1230.

Concealed premarital unchastity or parenthood as ground of divorce, 64 A.L.R.2d 742.

Homosexuality as a ground for divorce, 78 A.L.R.2d 807.

Divorce: time of pendency of former suit as part of period of desertion, 80 A.L.R.2d 855.

Acts occurring after commencement of suit for divorce as ground for decree under original complaint, 98 A.L.R.2d 1264.

Single act as basis of divorce or separation on ground of cruelty, 7 A.L.R.3d 761.

Right of one spouse, over objection, to voluntarily dismiss claim for divorce, 16 A.L.R.3d 283.

Retrospective effect of statute prescribing grounds of divorce, 23 A.L.R.3d 626.

Separation within the statute making separation a substantive ground of divorce, 35 A.L.R.3d 1238.

Transvestism or transsexualism of spouse as justifying divorce, 82 A.L.R.3d 725.

Adulterous wife's right to permanent alimony, 86 A.L.R.3d 97.

What constitutes "incompatibility" within statute specifying it as substantive ground for divorce, 97 A.L.R.3d 989.

Right of incarcerated mother to retain custody of infant in penal institution, 14 A.L.R.4th 748.

Excessiveness or adequacy of amount of money awarded as permanent alimony following divorce, 28 A.L.R.4th 786.

Enforceability of agreement requiring spouse's co-operation in obtaining religious bill of divorce, 29 A.L.R.4th 746.

Effect of death of party to divorce proceeding pending appeal or time allowed for appeal, 33 A.L.R.4th 47.

Right to jury trial in state court divorce proceedings, 56 A.L.R.4th 955.

Lis pendens as applicable to suit for separation or dissolution of marriage, 65 A.L.R.4th 522.

Insanity as defense to divorce or separation suit - post-1950 cases, 67 A.L.R.4th 277.

Homosexuality, transvestism, and similar sexual practices as grounds for annulment of marriage, 68 A.L.R.4th 1069.

Joinder of tort actions between spouses with proceeding for dissolution of marriage, 4 A.L.R.5th 972.

Homosexuality as ground for divorce, 96 A.L.R.5th 83.

27A C.J.S. Divorce §§ 13-70.