HOUSE BILL 9
48th legislature - STATE OF NEW MEXICO - second session, 2008
INTRODUCED BY
Mimi Stewart
AN ACT
RELATING TO DOMESTIC AFFAIRS; ENACTING THE DOMESTIC PARTNER RIGHTS AND RESPONSIBILITIES ACT; PROVIDING PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Domestic Partner Rights and Responsibilities Act".
Section 2. DEFINITIONS.--As used in the Domestic Partner Rights and Responsibilities Act:
A. "affidavit of domestic partnership" means an affidavit that identifies domestic partners and affirms that both domestic partners meet the requirements for entering into a domestic partnership with each other according to the provisions of the Domestic Partner Rights and Responsibilities Act;
B. "certificate of domestic partnership" means a certificate issued by the county clerk on behalf of the state certifying that the domestic partnership has been registered;
C. "domestic partner" means an adult who has chosen to share in another adult's life in a relationship of mutual caring and support and who has established a domestic partnership;
D. "domestic partnership" means a legal relationship that is not marriage that two domestic partners establish with each other according to the provisions and requirements of the Domestic Partner Rights and Responsibilities Act;
E. "record of domestic partnership" means a permanent record book kept by the county clerk of each county for the purpose of properly recording and indexing affidavits and certificates of domestic partnerships and ensuring that the affidavits and certificates of domestic partnerships are kept as county records; and
F. "registration fee" means twenty-five dollars ($25.00) to be paid by the domestic partners to the county clerk at the time of submitting an affidavit of domestic partnership.
Section 3. PROTECTIONS, OBLIGATIONS, BENEFITS AND RESPONSIBILITIES--EXCEPTIONS.--
A. Domestic partners shall be entitled to the same legal obligations, responsibilities, protections and benefits as are afforded or recognized, now or in the future, by the laws of the state to spouses, former spouses, widows or widowers, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil or criminal law. The Domestic Partner Rights and Responsibilities Act is not intended to repeal or adversely affect any other manner in which relationships between adults may be recognized or given effect in New Mexico, or the legal consequences of those relationships.
B. It is unlawful to discriminate against a domestic partner or domestic partnership on the grounds that the partner is not a spouse, widow or widower, or is not in a marriage. It is also unlawful to discriminate against persons seeking to form a domestic partnership based upon any classification protected under the Human Rights Act. Any person who suffers any loss of money or property, real or personal, as a result of a violation of this section may bring an action to recover actual damages. Any person who is otherwise damaged or is likely to be damaged by a violation of this section, either by being prevented from forming a domestic partnership or by being deprived of the rights provided for under the Domestic Partner Rights and Responsibilities Act, may be granted an injunction against the person or entity violating that act under the principles of equity and on terms that the court considers reasonable. In any action or proceeding under this section, if the complaining party prevails, the court in its discretion may allow actual damages and reasonable attorney fees. Proof of actual damages is not required to recover attorney fees.
C. Notwithstanding the provisions of this section, taxable status shall be governed as follows:
(1) in filing a state income tax return, a domestic partner shall use the same filing status as is used on a federal income tax return filed in the same tax year, or would have been used if a federal income tax return had been filed in the same year. Earned income shall not be treated as community property for state income tax purposes; and
(2) nothing in this section requires or permits the extension of any tax benefit if the extension of the tax benefit would conflict with the federal tax qualified plan requirements of the Internal Revenue Code of 1986 or implementing regulations.
Section 4. JURISDICTION.--
A. The district court shall have jurisdiction over any proceeding relating to domestic partnership, including dissolution, annulment and legal separation, and shall follow the same procedures as are used for spouses in a marriage.
B. In accordance with the consent acknowledged by the domestic partners in the affidavit of domestic partnership, if no other forum is available with comparable remedies to address distribution of assets, debts, support upon dissolution, annulment or legal separation as well as any other issues related to a domestic partnership registered in this state, the district court shall have jurisdiction even if neither party is a resident of, or maintains a domicile in, the state at the time the proceedings are filed.
C. A petition for dissolution, annulment or legal separation of a domestic partnership may be filed in the district court of the county in which the petitioner or respondent resides or last resided or in the county in which the domestic partnership is registered.
D. Nothing in this section shall be construed as granting jurisdiction in conflict with the Uniform Child-Custody Jurisdiction and Enforcement Act or the Uniform Interstate Family Support Act as adopted in New Mexico.
Section 5. RECIPROCITY.--A marriage between persons of the same sex, domestic partnership, civil union or a substantially similar legal relationship other than common law marriage entered into in another jurisdiction shall be recognized in New Mexico as a domestic partnership as defined in the Domestic Partner Rights and Responsibilities Act.
Section 6. RELIGIOUS FREEDOM.--Nothing in the Domestic Partner Rights and Responsibilities Act shall interfere with or regulate the religious practice of any religious body.
Section 7. COUNTY CLERK--DUTIES.--
A. A county clerk shall provide an affidavit of domestic partnership form to individuals prepared to establish a domestic partnership.
B. A county clerk shall receive a registration fee of twenty-five dollars ($25.00) for issuing and recording a certificate of domestic partnership.
C. A county clerk shall accept the affidavit of domestic partnership when it is submitted and shall issue and record a certificate of domestic partnership.
D. Each county shall maintain a record of domestic partnership at the expense of each respective county in the state for the purpose of recording and indexing affidavits and certificates of domestic partnerships as county records.
Section 8. ESTABLISHING A DOMESTIC PARTNERSHIP--CERTIFICATE.--
A. A domestic partnership is established when the affidavit of domestic partnership is accepted by a county clerk and the certificate of domestic partnership is issued and recorded.
B. To obtain a certificate of domestic partnership, individuals shall:
(1) submit an affidavit of domestic partnership to a county clerk on a form that conforms with the requirements of the Domestic Partner Rights and Responsibilities Act stating that the two individuals desire to become domestic partners and they:
(a) have reached the age of majority;
(b) are capable of consenting to the domestic partnership;
(c) are not married to someone else and are not part of another domestic partnership or civil union with someone else; and
(d) are not related by blood in a way that would prevent marriage under the laws of New Mexico;
(2) provide a mailing address;
(3) consent to the jurisdiction of the district courts of New Mexico for the purpose of a proceeding related to the domestic partnership;
(4) declare that representations made in the form are true, correct and contain no material omission of fact to the best knowledge and belief of each individual;
(5) notarize the affidavit of domestic partnership and deliver the affidavit to a county clerk for signature and recording according to the instructions provided on the affidavit; and
(6) pay the required registration fee of twenty-five dollars ($25.00).
C. Upon receipt of the affidavit of domestic partnership, the county clerk shall immediately issue a certificate of domestic partnership and record and index the certificate in the record of domestic partnership as part of the county records. After recording, a certificate of domestic partnership shall be provided to the domestic partners.
Section 9. MISREPRESENTATION OF DOMESTIC PARTNERSHIP ELIGIBILITY--PENALTY.--Filing an intentionally and materially false affidavit of domestic partnership shall be punishable as a misdemeanor.
Section 10. AFFIDAVIT AND CERTIFICATE OF DOMESTIC PARTNERSHIP--FORMS.--
A. To ensure a uniform system of records of all domestic partnerships, an affidavit of domestic partnership and a certificate of domestic partnership shall be substantially as provided in this section, with each form to be numbered consecutively corresponding with the page number of the record of domestic partnership in the county clerk's office. All such forms shall be provided free of cost by the county.
B. The affidavit of domestic partnership form shall be substantially as follows:
"AFFIDAVIT OF DOMESTIC PARTNERSHIP NO.___
STATEMENTS RECEIVED AND FILED IN THE COUNTY CLERK'S OFFICE AT ___ O'CLOCK ___ .M. ON ____________, 20___.
COUNTY CLERK, _____________ COUNTY
By __________________________ Deputy
To the county clerk:
We the undersigned hereby intend to be united in a domestic partnership and certify the following.
Each of us has reached the age of majority.
Each of us is capable of consenting to this domestic partnership.
Neither of us is married to someone else or is part of another domestic partnership or civil union with someone else that has not been terminated, dissolved or adjudged a nullity.
We are not related by blood in a way that would prevent marriage under the laws of New Mexico.
Each of us consents to the jurisdiction of the district courts of New Mexico for the purpose of a proceeding related to this domestic partnership or to domestic partners' rights and obligations, even if one or both of us do not reside in the state.
The representations here are true and correct and contain no material omission of fact to the best of our knowledge and belief.
Individual 1 Individual 2
Full name: Full name:
________________________ _________________________
Date of birth: Date of birth:
________________________ _________________________
Place of birth: Place of birth:
________________________ _________________________
Present address: Present address:
________________________ _________________________
________________________ _________________________
Signature: Signature:
________________________ _________________________
State of New Mexico
County of __________________
Subscribed and sworn to before me this ______ day of _____, 20___.
(Seal)
_____________________
County Clerk
On _______, 20___, before me _________________, Notary Public, acknowledge that ____________________ and ___________________ personally appeared and have proved to me with satisfactory evidence to be the persons whose names are subscribed to the affidavit of domestic partnership.
WITNESS my hand and official seal.
__________________________________
Signature of Notary Public
(PLACE NOTARY PUBLIC SEAL HERE)
FILE NO: __________________".
C. The certificate of domestic partnership form shall be substantially as follows:
"CERTIFICATE OF DOMESTIC PARTNERSHIP
State of New Mexico,
ss.
County of _________________.
_______________________ of ____________________ and
Partner 1 Address
_______________________ of ____________________
Partner 2 Address
are hereby recognized as domestic partners in accordance with the laws of the state of New Mexico and the Domestic Partner Rights and Responsibilities Act.
Recorded this ______________ day of ___________, 20____, at ______o'clock _____.M.
Record of Domestic Partnership Book No. ____, Page No. ___.
_____________________________
County Clerk."
Section 11. LIBERAL CONSTRUCTION.--The Domestic Partner Rights and Responsibilities Act shall be liberally construed to carry out its provisions.
Section 12. SEVERABILITY.--If any part or application of the Domestic Partner Rights and Responsibilities Act is held invalid, the remainder or its application to other situations or persons shall not be affected.
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