2021 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 4 - Dissolution of Marriage
Section 40-4-3 - Proceeding for division of property, disposition of children or alimony without the dissolution of marriage.

Whenever the husband and wife have permanently separated and no longer live or cohabit together as husband and wife, either may institute proceedings in the district court for a division of property, disposition of children or alimony, without asking for or obtaining in the proceedings, a dissolution of marriage.

History: Laws 1901, ch. 62, § 23; Code 1915, § 2774; C.S. 1929, § 68-502; 1941 Comp., § 25-702; 1953 Comp., § 22-7-2; Laws 1973, ch. 319, § 3.

Cross references. — For separation contracts, see 40-2-4 to 40-2-9 NMSA 1978.

Law of Spain and Mexico as basis for interpretation. — Since the civil law of Spain and Mexico served as the model for the statutory law of this state concerning the property rights of husband and wife, that law will be looked to as the basis for interpretation and definition. McDonald v. Senn, 1949-NMSC-020, 53 N.M. 198, 204 P.2d 990, 10 A.L.R.2d 966.

Civil action rather than special proceeding. — This section creates a "civil action" rather than a special proceeding, and adds to the equitable jurisdiction of the district courts. Ex parte Sedillo, 1929-NMSC-038, 34 N.M. 98, 278 P. 202.

Court-sanctioned separations. — New Mexico recognizes court-sanctioned separations. Although this section does not expressly state that the court can grant a legal separation, the outcome is the same. Gilmore v. Gilmore, 1988-NMCA-004, 106 N.M. 788, 750 P.2d 1114, cert. denied. 107 N.M. 16, 751 P.2d 700.

Husband and wife may separate but not divorce by consent. — Husband and wife may permanently separate by consent but may not secure absolute divorce by consent. Poteet v. Poteet, 1941-NMSC-025, 45 N.M. 214, 114 P.2d 91.

Existing present interest of wife in community. — This section recognizes an existing present interest of the wife in the community property during the existence of the matrimonial status. Beals v. Ares, 1919-NMSC-067, 25 N.M. 459, 185 P. 780.

This section clearly recognizes an existing present interest of the wife in community property during the existence of the matrimonial status. In re Miller's Estate, 1940-NMSC-021, 44 N.M. 214, 100 P.2d 908.

Community rights not forfeited by adultery. — This statute does not forfeit the wife's interest in the community property by her adultery, and her rights therein are not affected by any of her wrongs. Beals v. Ares, 1919-NMSC-067, 25 N.M. 459, 185 P. 780.

Community rights generally not forfeited by bigamy. — The mere fact of bigamy is insufficient to deprive wife of her share of community property. Medina v. Medina, 2006-NMCA-042, 139 N.M. 309, 131 P.3d 696.

Circumstances when community rights are forfeited by bigamy. — A bigamous spouse should be deprived of his or her community property rights only when the circumstances of the case shock the conscience of the court. Medina v. Medina, 2006-NMCA-042, 139 N.M. 309, 131 P.3d 696.

Contempt for failure to pay where separation regarded permanent. — In action under this section where a permanent separation was not expressly alleged, father adjudged in contempt for failure to pay for support of children will not be released on habeas corpus for lack of jurisdiction where the record shows that both parties regarded the separation as permanent. Ex parte Sedillo, 1929-NMSC-038, 34 N.M. 98, 278 P. 202.

Agreement not automatically vacated because only one attorney employed. — The mere fact that attorney was employed by both wife and husband and did advise, to some extent, both of them did not automatically entitle wife to have vacated a predivorce agreement adopted by the trial court as its own division of community property. Hensley v. Zarges, 1971-NMSC-075, 82 N.M. 779, 487 P.2d 481.

Error to admit evidence of divorce proceeding where property not considered. — At proceeding to determine property rights of divorced spouses, trial court erred in admitting into evidence an oral statement by the court in the divorce proceedings that the agreement of the parties as to the distribution of their property was ratified and approved, and further erred in making a finding to this effect, where the trial court in the divorce proceeding did not pass upon the property rights of the parties, but such error was harmless where admission of such evidence did not affect the result. Hensley v. Zarges, 1971-NMSC-075, 82 N.M. 779, 487 P.2d 481.

Continuing jurisdiction over custody matters. — As long as a court continues to have jurisdiction over either the children or both parents, it has continuing jurisdiction to hear all matters relating to custody. Murphy v. Murphy, 1981-NMSC-069, 96 N.M. 401, 631 P.2d 307.

This section gives a court subject matter jurisdiction over matters of custody and visitation whether a dissolution of marriage is requested or not, as long as the parties are personally subject to the jurisdiction of the court. Murphy v. Murphy, 1981-NMSC-069, 96 N.M. 401, 631 P.2d 307.

Habeas corpus as means of determining custodial rights of children. — Under appropriate circumstances, habeas corpus is an available remedy by which to consider controversies involving the issue of custody of infants. Roberts v. Staples, 1968-NMSC-109, 79 N.M. 298, 442 P.2d 788.

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

For article, "Federal Taxation of New Mexico Community Property," see 3 Nat. Resources J. 104 (1963).

For comment on Trujillo v. Padilla, 79 N.M. 245, 442 P.2d 203 (1968), see 9 Nat. Resources J. 101 (1969).

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, "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).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Effect of reconciliation on separation agreement or decree, 35 A.L.R.2d 707, 36 A.L.R.4th 502.

Retrospective modification of, or refusal to enforce, decree for alimony, separate maintenance, or support, 6 A.L.R.2d 1277, 52 A.L.R.3d 156.

Defenses available to husband in civil suit by wife for support, 10 A.L.R.2d 466, 36 A.L.R.4th 502.

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

Reconciliation as affecting separation agreement or decree, 35 A.L.R.2d 707, 36 A.L.R.4th 502.

Nonresident wife, right to maintain action for separate maintenance alone against resident husband, 36 A.L.R.2d 1369.

Specific performance of provisions of separation agreement other than those for support or alimony, 44 A.L.R.2d 1091.

Property rights of spouses adjudicated in action for separate maintenance without divorce, 74 A.L.R.2d 316.

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.

Recovery for services rendered by persons living in apparent relation of husband and wife without express agreement for compensation, 94 A.L.R.3d 552.

Validity, construction, and application of Uniform Child Custody Jurisdiction Act, 96 A.L.R.3d 968, 78 A.L.R.4th 1028, 16 A.L.R.5th 650, 20 A.L.R.5th 700, 21 A.L.R.5th 396, 40 A.L.R.5th 227.

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

Initial award or denial of child custody to homosexual or lesbian parent, 6 A.L.R.4th 1297.

Excessiveness or adequacy of amount of money awarded as separate maintenance, alimony, or support for spouse without absolute divorce, 26 A.L.R.4th 1190.

Court's authority to award temporary alimony or suit money in action for divorce, separate maintenance, or alimony where the existence of a valid marriage is contested, 34 A.L.R.4th 814.

Reconciliation as affecting decree for limited divorce, separation, alimony, separate maintenance, or spousal support, 36 A.L.R.4th 502.

Spouse's right to discovery of closely held corporation records during divorce proceeding, 38 A.L.R.4th 145.

Spouse's dissipation of marital assets prior to divorce as factor in divorce court's determination of property division, 41 A.L.R.4th 416.

Divorce: equitable distribution doctrine, 41 A.L.R.4th 481.

Primary caretaker role of respective parents as factor in awarding custody of child, 41 A.L.R.4th 1129.

Divorce and separation: treatment of stock options for purposes of dividing marital property, 46 A.L.R.4th 640.

Valuation of stock options for purposes of divorce court's property distribution, 46 A.L.R.4th 689.

Divorced or separated spouse's living with member of opposite sex as affecting other spouse's obligation of alimony or support under separation agreement, 47 A.L.R.4th 38.

Modern status of views as to validity of premarital agreements contemplating divorce or separation, 53 A.L.R.4th 22.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by circumstances surrounding execution - modern status, 53 A.L.R.4th 85.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by fairness or adequacy of those terms - modern status, 53 A.L.R.4th 161.

Divorce and separation: method of valuation of life insurance policies in connection with trial court's division of property, 54 A.L.R.4th 1203.

Divorce: excessiveness or adequacy of trial court's property award - modern cases, 56 A.L.R.4th 12.

Divorce: propriety of property distribution leaving both parties with substantial ownership interest in same business, 56 A.L.R.4th 862.

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.

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 and separation: attributing undisclosed income to parent or spouse for purposes of making child or spousal support award, 70 A.L.R.4th 173.

State court's authority, in marital or child custody proceeding, to allocate federal income tax dependency exemption for child to noncustodial parent under § 152(e) of the Internal Revenue Code (26 USCS § 152(e)), 77 A.L.R.4th 786.

Valuation of goodwill in medical or dental practice for purposes of divorce court's property distribution, 78 A.L.R.4th 853.

What constitutes order made pursuant to state domestic relations law for purposes of qualified domestic relations order exception to antialienation provision of Employee Retirement Income Security Act of 1974 (29 USCS § 1056(d)), 79 A.L.R.4th 1081.

Divorce and separation: consideration of tax consequences in distribution of marital property, 9 A.L.R.5th 568.

Divorce and separation: award of interest on deferred installment payments of marital asset distribution, 10 A.L.R.5th 191.

Recognition and enforcement of out-of-state custody decree under § 13 of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A(a), 40 A.L.R.5th 227.

Divorce and separation: Attorney's contingent fee contracts as marital property subject to distribution, 44 A.L.R.5th 671.

Consideration of obligor's personal-injury recovery or settlement infixing alimony or child support, 59 A.L.R.5th 489.

Initial award or denial of child custody to homosexual or lesbian parent, 62 A.L.R.5th 591.

Custodial parent's homosexual or lesbian relationship with third person as justifying modification of child custody order, 65 A.L.R.5th 591.

Spouse's cause of action for negligent personal injury, or proceeds therefrom, as separate or community property, 80 A.L.R.5th 533.

Determination of whether proceeds from personal injury settlement or recovery constitute marital property, 109 A.L.R.5th 1.

Division of lottery proceeds in divorce proceedings, 125 A.L.R. 3d 537.