2020 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 4 - Dissolution of Marriage
Section 40-4-2 - Incompatibility.

Universal Citation: NM Stat § 40-4-2 (2020)

Incompatibility exists when, because of discord or conflict of personalities, the legitimate ends of the marriage relationship are destroyed preventing any reasonable expectation of reconciliation.

History: 1953 Comp., § 22-7-1.1, enacted by Laws 1973, ch. 319, § 2.


Divorce must be decreed where incompatibility exists. — 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.

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.

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.

No deprivation of jurisdiction by cohabitation. — Evidence of cohabitation by the parties after filing a petition for divorce based on incompatibility did not deprive the court of jurisdiction, where the wife did not file an answer to the husband's complaint nor contest his allegation that the parties were in fact incompatible. Joy v. Joy, 1987-NMCA-031, 105 N.M. 571, 734 P.2d 811.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Recrimination as defense to divorce sought on ground of incompatibility, 21 A.L.R.2d 1267.

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

27A C.J.S. Divorce § 19.

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