2023 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 4 - Dissolution of Marriage
Section 40-4-12 - Allowance from spouse's separate property as alimony.

In proceedings for the dissolution of marriage, separation or support between husband and wife, the court may make an allowance to either spouse of the other spouse's separate property as alimony and the decree making the allowance shall have the force and effect of vesting the title of the property so allowed in the recipient.

History: 1941 Comp., § 25-716, enacted by Laws 1947, ch. 16, § 1; 1953 Comp., § 22-7-13; Laws 1973, ch. 319, § 9.

Cross references. — For notes regarding alimony, see "IV. ALLOWING AND MODIFYING ALIMONY." in notes following 40-4-7 NMSA 1978.

Failure to request alimony does not deny court's authority to award. — Ordinarily, alimony is an incident of divorce proceedings, but the failure to make a request for alimony in the pleadings cannot be construed as denying the trial court statutory authority to make an award of alimony. Mitchell v. Mitchell, 1953-NMSC-115, 57 N.M. 776, 264 P.2d 673.

Even though not specifically requested, the court may, in an effort to equitably divide the community property, grant an award of alimony. Ridgway v. Ridgway, 1980-NMSC-055, 94 N.M. 345, 610 P.2d 749.

Award of wife's share of community property not alimony. — An award to a wife of her share of the community property was not tantamount to an award of alimony. Ridgway v. Ridgway, 1980-NMSC-055, 94 N.M. 345, 610 P.2d 749.

Community estate becomes separate estate when divided by divorce. — When community property is divided incident to divorce, the property which previously was community estate becomes henceforth separate property of the respective parties. Harper v. Harper, 1950-NMSC-024, 54 N.M. 194, 217 P.2d 857.

Court may impose lien on separate property. — This section, which grants authority to provide allowances out of separate property only, does so for purposes of alimony or child support; however, under its inherent power, the court may impose a lien on separate property as security for a debt owed. Ridgway v. Ridgway, 1980-NMSC-055, 94 N.M. 345, 610 P.2d 749.

Allowance made notwithstanding separation agreement. — In suit for divorce, the court, having jurisdiction of the subject matter and parties, may allow the wife such a reasonable portion of the husband's separate property as may seem just, notwithstanding a separation agreement between the parties, effectuated by conveyances. Oberg v. Oberg, 1931-NMSC-051, 35 N.M. 601, 4 P.2d 918.

Lump sum award in lieu of alimony. — It is within the power of the trial court to award and to set over to the wife a lump sum in lieu of alimony out of the husband's interest in the community. Harper v. Harper, 1950-NMSC-024, 54 N.M. 194, 217 P.2d 857.

Wife's remarriage considered in fixing alimony amount. — In fixing the amount of alimony, some consideration should be given to the impending remarriage of the wife, bearing in mind that alimony is intended as a method of fulfilling the husband's obligation to provide the support needed by the wife in accordance with the husband's ability to pay. Michelson v. Michelson, 1976-NMSC-026, 89 N.M. 282, 551 P.2d 638.

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

For comment, "In-Migration of Couples from Common Law Jurisdictions: Protecting the Wife at the Dissolution of the Marriage," see 9 N.M.L. Rev. 113 (1978-79).

For note, "Community Property - Profit Sharing Plans - Approval of Undiscounted Current Actual Value and Distribution by Promissory Note Secured by Lien on Separate Property," see 11 N.M.L. Rev. 409 (1981).

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 annual survey of New Mexico family law, 19 N.M.L. Rev. 692 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 24 Am. Jur. 2d Divorce and Separation § 755.

Wife's misconduct or fault as affecting right to temporary alimony, 2 A.L.R.2d 307.

Right of former wife to counsel fees upon application after absolute divorce to increase or decrease alimony, 15 A.L.R.2d 1252.

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

Default decree in divorce action as estoppel or res judicata with respect of marital property rights, 22 A.L.R.2d 724.

Divorce upon constructive service as affecting power to allow alimony upon subsequently obtaining personal jurisdiction over former husband, 28 A.L.R.2d 1378.

Enforcement of claim for alimony or for attorneys' fees against exemptions, 54 A.L.R.2d 1422.

Husband's right to alimony, maintenance, suit money or attorneys' fees in suit for divorce, 66 A.L.R.2d 880.

Trust income or assets as subject to claim against beneficiary for alimony, maintenance or child support, 91 A.L.R.2d 262.

Fault of party affecting right to alimony under statute making separation a substantive ground for divorce, 35 A.L.R.3d 1238.

Consideration of tax liability or consequences in determining alimony or property settlement provisions of divorce or separation, 51 A.L.R.3d 461, 9 A.L.R.5th 568.

Fault as consideration in alimony, spousal support, or property division awards pursuant to no-fault divorce, 86 A.L.R.3d 1116.

Divorced woman's subsequent sexual relations or misconduct as warranting, alone or with other circumstances, modification of alimony decree, 98 A.L.R.3d 453.

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

Appointment or discharge of receiver for marital or community property necessitated by suit for divorce or separation, 15 A.L.R.4th 224.

Court's authority to award temporary alimony where existence of valid marriage is contested, 34 A.L.R.4th 814.

Necessity that divorce court value property before distributing it, 51 A.L.R.4th 11.

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 combined property division and spousal support awards - modern cases, 55 A.L.R.4th 14.

Withholding visitation rights for failure to make alimony or support payments, 65 A.L.R.4th 1155.

Death of obligor spouse as affecting alimony, 79 A.L.R.4th 10.

Effect of same-sex relationship on right to spousal support, 73 A.L.R.5th 599.

Propriety of equalizing income of spouses through alimony awards, 102 A.L.R.5th 395.

Liability of alimony for wife's debts, 10 A.L.R. Fed. 881.

27B C.J.S. Divorce § 398.