HB0242

HOUSE BILL 242

56th legislature - STATE OF NEW MEXICO - second session, 2024

INTRODUCED BY

Doreen Y. Gallegos and Daniel A. Ivey-Soto

AN ACT

RELATING TO DOMESTIC AFFAIRS; CLARIFYING THE PROCESS OF SOLEMNIZATION, LICENSURE AND CONTRACTS FOR MARRIAGE; PROVIDING DEFINITIONS; ALLOWING APPEARANCE BY REMOTE COMMUNICATION TECHNOLOGY FOR THE ISSUANCE OF A MARRIAGE LICENSE FOR UNIFORMED SERVICES MEMBERS WHO ARE DEPLOYED OR ON ACTIVE DUTY; PROVIDING FORMS; PROVIDING FOR DISSOLUTION OF MARRIAGE ON GROUNDS OF THE MARRIAGE BEING VOID, VOIDABLE OR INVALID; AMENDING FEES; PRESCRIBING MARRIAGE RECORDING AND INDEXING GUIDELINES; AMENDING PENALTIES; REVISING TERMS THAT DESCRIBE PARTIES TO A MARRIAGE; CLARIFYING PROPERTY RIGHTS; AMENDING, REPEALING AND ENACTING SECTIONS OF CHAPTER 40 NMSA 1978.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. A new Section 40-1-1.1 NMSA 1978 is enacted to read:

"40-1-1.1. [NEW MATERIAL] DEFINITIONS.--As used in Chapter 40, Article 1 NMSA 1978:

A. "Indian nation, tribe or pueblo" means an indigenous nation, tribe, pueblo or other band, organized group or community of Indians, including an Alaskan Native tribe, that is federally recognized by the bureau of Indian affairs of the United States department of the interior;

B. "judicial officer" means a person who is:

(1) a justice or judge of any of the courts established by the constitution or laws of New Mexico;

(2) a justice or judge of any of the courts established by the constitution or laws of the United States; or

(3) designated as a judicial officer by the laws or customs of an Indian nation, tribe or pueblo, if the nation, tribe or pueblo designates judicial officers;

C. "religious ceremony" means a ceremony conducted pursuant to any exercise of religion, whether or not compelled by or central to a system of religious belief, construed in favor of a broad protection of religious exercise to the maximum extent pursuant to the state and federal constitutions;

D. "religious officer" means a person who is:

(1) ordained as clergy by a religious society;

(2) authorized to solemnize a marriage by the written and approved rites or rules of a religious society; or

(3) designated by the laws or customs of an Indian nation, tribe or pueblo as a religious officer, if the nation, tribe or pueblo designates religious officers;

E. "religious society" means a religious organization, including a church, mosque, synagogue, temple, denominational ministry, nondenominational ministry, interdenominational or ecumenical organization, mission organization, faith-based social agency, religious educational institution or any other nonprofit entity whose principal purpose is the study, practice or advancement of religion;

F. "solemnize" means to join in marriage before witnesses by means of a ceremony;

G. "uniformed services" means:

(1) the active or reserve components of the United States army, navy, air force, marine corps, space force, coast guard or merchant marine;

(2) the commissioned corps of the United States public health service, the national oceanic and atmospheric administration or the astronaut program of the national aeronautics and space administration; and

(3) the army national guard division and the air national guard division of the department of military affairs; and

H. "witnesses" means two individuals at least eighteen years of age chosen by a couple to witness a ceremony and, if needed, to testify to the time and place where the ceremony took place."

SECTION 2. Section 40-1-2 NMSA 1978 (being Laws 1859-1860, p. 120, as amended) is amended to read:

"40-1-2. MARRIAGES SOLEMNIZED--[ORDAINED CLERGY OR CIVIL MAGISTRATES] WHO MAY SOLEMNIZE.--

A. The civil contract of marriage is entered into when solemnized as provided in Chapter 40, Article 1

NMSA 1978. [As used in Chapter 40, Article 1 NMSA 1978, "solemnize" means to join in marriage before witnesses by means of a ceremony.

B. A person who is an ordained member of the clergy or who is an authorized representative of a federally recognized Indian nation, tribe or pueblo may solemnize the contract of marriage without regard to sect or rites and customs the person may practice.]

B. The civil contract of marriage may be solemnized by a ceremony officiated by:

(1) a judicial officer;

(2) a religious officer; or

(3) such other person over the age of twenty-one selected by the parties to the marriage to officiate at the ceremony.

C. [Active or retired judges, justices and magistrates of any of the courts established by the constitution of New Mexico, United States constitution, laws of the state or laws of the United States are civil magistrates having authority to solemnize contracts of marriage. Civil magistrates solemnizing contracts of marriage] A judicial officer shall charge no fee [therefor] to solemnize the civil contract of marriage."

SECTION 3. Section 40-1-3 NMSA 1978 (being Laws 1862-1863, p. 66, as amended) is amended to read:

"40-1-3. CEREMONY BY RELIGIOUS SOCIETY OR INDIAN NATION, TRIBE OR PUEBLO.--[It is lawful for]

A. Any religious society or [federally recognized] Indian nation, tribe or pueblo [to] may lawfully solemnize a marriage conformably with its rites and customs, and the religious officer, secretary of the society or the person authorized by the society or [federally recognized] Indian nation, tribe or pueblo shall make and transmit a transcript to the county clerk certifying to the marriages solemnized.

B. Religious societies or Indian nations, tribes or pueblos shall not be required to provide services, accommodations, advantages, facilities, goods or privileges for the solemnization or celebration of a marriage.

C. Nothing in Chapter 40, Article 1 NMSA 1978 shall be construed in any manner to interfere with any form of religious ceremony, traditional indigenous ceremony, additional regulation or requirement prescribed by any religious society or Indian nation, tribe or pueblo nor with any records kept by them.

D. Nothing in Chapter 40, Article 1 NMSA 1978 shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the federal or state constitutions or under federal or state law or with the rites and customs of an Indian nation, tribe or pueblo."

SECTION 4. Section 40-1-4 NMSA 1978 (being Laws 1862-1863, p. 64, as amended) is amended to read:

"40-1-4. FOREIGN MARRIAGES RECOGNIZED.--[Sec. 5.]

A. All marriages celebrated beyond the limits of this state [which] that are valid according to the laws of the country [wherein] or state in which they were celebrated or contracted shall be [likewise] valid in this state and shall have the same force as if they had been celebrated in accordance with the laws in force in this state.

B. The state gives its full faith and credit to any marriage between two individuals solemnized in another state or country, regardless of the sex, sexual orientation, gender, gender identity, race, ethnicity or national origin of those individuals.

C. A marriage that is polygamous or plural is contrary to Section 1 of the Compact with the United States, notwithstanding the laws of the state or country wherein that marriage or polygamous or plural additions to that marriage were celebrated or contracted."

SECTION 5. Section 40-1-6 NMSA 1978 (being Laws 2013, Chapter 144, Section 4) is amended to read:

"40-1-6. [RESTRICTIONS ON] MARRIAGE OF MINORS--VOIDABLE.--[A.] The county clerk shall not issue a marriage license to [an unemancipated] a person [sixteen or seventeen years of age] under the age of eighteen, and no person authorized by the laws of this state to solemnize marriages shall knowingly unite in marriage any person [sixteen or seventeen years of age, unless the minor first receives the written consent of each of the minor's living parents as shown on the minor's certificate of birth, or the district court has authorized the marriage of such person upon request of a parent or legal guardian of the person for good cause shown, and a certified copy of the judicial authorization is filed with the county clerk.

B. The county clerk shall not issue a marriage license to any person under sixteen years of age, and no person authorized by the laws of this state to solemnize marriages shall knowingly unite in marriage any person under sixteen years of age, unless the children's or family court division of the district court has first authorized the marriage of the person upon request of a parent or legal guardian of the person in settlement of proceedings to compel support and establish parentage, or where an applicant for the marriage license is pregnant, and a certified copy of the judicial authorization is filed with the county clerk] under the age of eighteen."

SECTION 6. Section 40-1-7 NMSA 1978 (being Laws 1876, Chapter 31, Section 1, as amended) is amended to read:

"40-1-7. INCESTUOUS MARRIAGES--VOID.--[All] The following incestuous marriages between relations [and children, including] are prohibited in this state:

A. grandparents [and] with grandchildren, [of all degrees; between] including great-grandparents with great-grandchildren;

B. parents with their children;

C. siblings, being brothers [and] or sisters; [of full blood or of half blood; between]

D. cousins within the first degree of consanguinity; and

E. aunts or uncles, [and] with nieces [and between aunts and] or nephews [are declared incestuous and absolutely void]."

SECTION 7. Section 40-1-9 NMSA 1978 (being Laws 1876, Chapter 32, Section 1, as amended) is repealed and a new Section 40-1-9 NMSA 1978 is enacted to read:

"40-1-9. [NEW MATERIAL] POLYGAMOUS OR PLURAL MARRIAGES--INVALID.--Pursuant to Section 1 of the Compact with the United States, polygamous or plural marriages are prohibited in this state."

SECTION 8. Section 40-1-10 NMSA 1978 (being Laws 1905, Chapter 65, Section 1, as amended) is amended to read:

"40-1-10. LICENSE REQUIRED--COUNTY CLERK.--

A. Each couple desiring to marry pursuant to the laws of New Mexico shall first obtain a license from a county clerk of this state and, following a ceremony conducted in this state, file the license for recording in the county issuing the license.

B. To obtain a marriage license, the couple shall personally appear at the office of the county clerk or before the county clerk or an authorized deputy county clerk issuing the license, and each person shall provide government-issued identification with a photograph that resembles the person seeking to marry or other sufficient identification to satisfy the county clerk or authorized deputy county clerk as to each person's identity and qualification to receive a marriage license pursuant to Chapter 40, Article 1 NMSA 1978. On application to a judge of the district court, the court, for good cause, may authorize a person unable to appear personally to obtain a license from the county clerk, and a certified copy of the judicial authorization shall be filed with the county clerk.

C. A member of the uniformed services who is deployed or activated to a duty assignment or station outside of this state may be issued a marriage license without appearing personally in the office of the county clerk and without a judicial authorization as provided for in Subsection B of this section if:

(1) the other party to the marriage appears personally in the office of the county clerk or before the county clerk or an authorized deputy county clerk;

(2) at least one party to the marriage is a permanent or temporary resident of the county of the county clerk's office issuing the license;

(3) the deployed person fills out the declaration provided by the county clerk for this purpose;

(4) a copy of the order deploying or activating the person and indicating the place of the duty assignment or station is attached to the declaration;

(5) the declaration and copy of the deployment or activation order is filed with the county clerk; and

(6) the civil contract of marriage is solemnized by means of a ceremony conducted in this state in which the deployed member appears by remote communication technology, while the other party to the marriage, the person solemnizing the marriage and the witnesses are physically located in this state.

D. A marriage license shall be issued to any couple in New Mexico who otherwise qualify pursuant to Chapter 40, Article 1 NMSA 1978, regardless of the sex, sexual orientation, gender, gender identity, race, ethnicity or national origin of the two individuals seeking to obtain the marriage license.

E. A marriage license issued pursuant to this section expires and shall not be used for a ceremony to solemnize the civil contract of marriage if:

(1) one year passes from the issuance of the marriage license without a ceremony taking place within this state; or

(2) a later marriage license is issued to either party on a marriage license listing a different person as the second party to a marriage.

[C.] F. The county clerk shall:

(1) [shall] collect the social security number of [an applicant] the applicants for a marriage license who have been assigned a social security number only as provided for in Section 27-1-10 NMSA 1978;

(2) [shall] not make available a social security number to another person except as provided for in Section 27-1-10 NMSA 1978; and

(3) [may, thirty days after the commencement of each fiscal year] during the month of August, dispose of, in a secure manner, those social security numbers collected in the previous fiscal year that have not been requested as provided for in Section 27-1-10 NMSA 1978."

SECTION 9. Section 40-1-11 NMSA 1978 (being Laws 1957, Chapter 33, Section 1, as amended) is amended to read:

"40-1-11. FEES--DISPOSITION.--

A. The county clerk shall receive a fee of [twenty-five dollars ($25.00)] forty dollars ($40.00) for each of the following instruments, except as otherwise provided in this section:

(1) issuing, acknowledging and recording a marriage license and marriage certificate [fifteen dollars ($15.00) of each fee shall be remitted by the county treasurer to the state treasurer, within fifteen days of the last day of each month, for credit to the children's trust fund];

(2) recording a declaration submitted by a member of the uniformed services who is deployed or activated to a duty assignment or station outside this state; or

(3) issuing a certificate of correction or correcting or reissuing an application for a marriage license, a marriage license or a certificate of marriage upon an order of the district court.

B. In those counties where the county clerk has posted on the county website and in the county clerk's office, the county clerk shall receive a fee of eighty dollars ($80.00) for issuing, acknowledging and recording a marriage license and marriage certificate where neither party to the marriage has an address in this state.

C. Fees collected pursuant to this section shall be deposited in the county clerk recording and filing fund; provided that for each fee received by the county clerk for issuing, acknowledging and recording a marriage license and marriage certificate pursuant to Subsections A and B of this section, within fifteen days of the last day of each month, the county treasurer shall remit:

(1) ten dollars ($10.00) to the county general fund; and

(2) fifteen dollars ($15.00) to the state treasurer for credit to the children's trust fund."

SECTION 10. Section 40-1-14 NMSA 1978 (being Laws 1905, Chapter 65, Section 3, as amended) is amended to read:

"40-1-14. PRODUCTION OF LICENSE AND PROOF OF LEGAL QUALIFICATIONS.--[Prior to a ceremony]

A. All persons authorized to solemnize the civil contract of marriage shall first require the parties contemplating marriage to produce a license signed and sealed by the county clerk issuing the license.

B. Nothing in Chapter 40, Article 1 NMSA 1978 shall excuse any person authorized by the laws of this state to solemnize the civil contract of marriage from being satisfied as to the legal qualifications of any parties desiring to be married, in addition to the authority conferred by the license."

SECTION 11. Section 40-1-15 NMSA 1978 (being Laws 1905, Chapter 65, Section 4, as amended) is amended to read:

"40-1-15. CERTIFICATION OF MARRIAGE--RECORDING AND INDEXING.--

A. It is the duty of all persons solemnizing the contract of marriage in this state to certify the marriage to the county clerk within ninety days from the date of the marriage ceremony. Upon ensuring the information on the certificate is complete and legible, the county clerk shall immediately upon receipt of the certificate cause it to be properly recorded and indexed in a permanent record as a part of the county records in a separate physical or electronic book kept for that purpose. The failure to return the certificate of marriage to the county clerk who issued the license does not by itself void the marriage created by the ceremony conducted pursuant to Chapter 40, Article 1 NMSA 1978.

B. The county clerk:

(1) may issue a certificate of correction or correct or reissue an application for a marriage license, a marriage license or a certificate of marriage as a result of a typographical or data entry error by the office of the county clerk [The county clerk]; and

(2) shall issue a certificate of correction or correct or reissue an application for a marriage license, a marriage license or a certificate of marriage to correct an error on the document upon order of the district court."

SECTION 12. Section 40-1-17 NMSA 1978 (being Laws 1905, Chapter 65, Section 7, as amended) is amended to read:

"40-1-17. UNIFORM [USE FORM] SYSTEM OF RECORDS.--

A. To ensure a uniform system of records of all marriages contracted and the better preservation of the records for future reference, the form of application, license and certificate shall be [substantially as provided in Section 40-1-18 NMSA 1978, each blank to be] numbered consecutively [corresponding with the page number of the record book in the clerk's office; provided that the medical evaluation language shall not be printed on the application until such time as the secretary of health deems such evaluation necessary through the issuance of rules].

B. The county clerk shall also record in the same uniform system of records all other forms recorded, filed or appended pursuant to Chapter 40, Article 1 NMSA 1978. The uniform system of records shall be segregated from other records recorded or filed in the county clerk's office."

SECTION 13. Section 40-1-18 NMSA 1978 (being Laws 1961, Chapter 99, Section 1) is amended to read:

"40-1-18. FORM OF APPLICATION, LICENSE AND CERTIFICATE.--

"APPLICATION FOR MARRIAGE LICENSE

No._________________ STATEMENTS

RECEIVED AND FILED

IN COUNTY CLERK'S OFFICE

at ______ o'clock _____m.

____________ [19] 20_____

[DATE OF PREMARITAL PHYSICAL EXAMINATION

Bride________________________________

Groom________________________________

COUNTY CLERK___________________COUNTY

By ______________________Deputy]

To the County Clerk: We the undersigned hereby make application to be united in marriage and certify under penalty of perjury that we are not related within the degree prohibited by the laws of this state; that neither is bound by marriage to another; that any marriage license previously issued to either party to the marriage where a ceremony has not taken place is expired by the issuance of this marriage license; that there exists no legal impediment to this marriage; and that the information contained herein is true and correct.

Applicant Applicant

Date of Birth Date of Birth

____________________________ ______________________________

Place of Birth Place of Birth

___________________________ ______________________________

Present Address____________ Present Address_______________

___________________________ ______________________________ Signature Signature

Subscribed and sworn to before me this _______________day

of ______________________ [A.D. 19] 20__________.

(seal)

_________________________ By_____________________Deputy

Signature County Clerk

[CONSENT OF PARENT OR GUARDIAN (where either party is under age)

I, the parent (guardian) of ____________________________,

hereby consent to the granting of a license to marry, waiving the question of minority.

____________________________

Signature Parent (Guardian)

I, the parent (guardian) of ____________________________,

hereby consent to the granting of a license to marry, waiving the question of minority.

_____________________________

Signature Parent (Guardian)]

MARRIAGE LICENSE

State of New Mexico, )

County of ____________) ss.

To any Person Authorized by Law to Perform the Marriage Ceremony:

Greeting:

You are hereby authorized to join in marriage ___________ [of_________________________] and ___________________________ [of __________________________] within one year from the date this license was issued and of this license you will make due return to my office within [the time prescribed by law] ninety days of the ceremony conducted within the state of New Mexico.

Witness my hand and the seal [of said court] at ___________ this _______________ day of ____________________________, [19] 20__________.

_________________________

County Clerk

Recorded ______________, [19] 20_______, at _______________m.

In marriage record book no. _____________ page _________

_________________________

County Clerk

MARRIAGE CERTIFICATE

State of New Mexico, )

County of ___________ ) ss.

I hereby certify that on the ______ day of _____________,

[A.D., 19] 20______, at __________________________in [said county and] the state of New Mexico, I, the undersigned, a _____________________, did [join in the Holy Bonds of Matrimony] solemnize the civil contract of marriage in accordance with the laws of the state of New Mexico and the authorization of the foregoing license ___________________ [of __________________] and ____________________________ [of __________________________].

Witness my hand [and seal] on the day and year last above written.

_________________________________

(Name of person solemnizing marriage)

_________________________

([Official] Title of person solemnizing marriage)

WITNESSES:

Signed _________________________________________

APPLICANTS:

Signed __________________[Groom.]

Signed ________________[Bride.]

Recorded this ______________ day of ____________________,

[A.D., 19] 20_______, at ___________ m.

Marriage Record [Book] No. ___________ [Page No. __________] _________________________

County Clerk."."

SECTION 14. A new Section 40-1-18.1 NMSA 1978 is enacted to read:

"40-1-18.1. [NEW MATERIAL] DECLARATION BY DEPLOYED OR ACTIVATED MEMBER OF THE UNIFORMED SERVICES.--

"Declaration by a deployed or activated member of the uniformed services of intent to solemnize the civil contract of marriage

(Print Clearly or Type)

Let it be Known to All:

I attest under penalty of perjury that:

1) My name is: , and my date of birth is: .

2) I am a member of the uniformed services deployed or activated to a duty assignment or station outside the state of New Mexico as shown on the attached order.

3) I desire to marry: , whose date of birth is: .

4) I am at least eighteen (18) years of age, not related within the prohibited degrees to the person I desire to marry, and not currently married to another person.

5) I understand that I will appear by remote communication technology at a ceremony conducted in the state of New Mexico in which the person I desire to marry, the person solemnizing the marriage and the witnesses appear in person at the ceremony.

6) By means of this declaration, I apply for a marriage license so that I may enter into the civil contract of marriage pursuant to the laws of the state of New Mexico.

_______________________________

(Signed)

Signed (or attested to) before me on _______ by ______________.

Date Name of individual

______________________________

Signature of notarial officer

Stamp

________________________________

Title of officer

Recorded this ________ day of _________, 20 ____, at ____m. Marriage Record No. ____.

______________________________________

County Clerk."."

SECTION 15. Section 40-1-19 NMSA 1978 (being Laws 1905, Chapter 65, Section 9, as amended) is amended to read:

"40-1-19. OFFENSES--PENALTIES.--

A. For failure to perform the county clerk's responsibilities and duties pursuant to Chapter 40, Article 1 NMSA 1978, a county clerk is responsible on the county clerk's official bond for damages suffered by the injured party.

B. A person who performs the marriage ceremony or certifies a marriage to the county clerk, who neglects or fails to comply with the provisions of Chapter 40, Article 1 NMSA 1978 and any person who willfully violates the law by deceiving or attempting to deceive or mislead any officer or person in order to obtain a marriage license or to be married contrary to law is upon conviction guilty of a misdemeanor for each ceremony conducted or for each marriage certified to the county clerk and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.

C. The criminal penalty provided for in this section is not exclusive of other charges or penalties that may be applicable."

SECTION 16. Section 40-2-1 NMSA 1978 (being Laws 1907, Chapter 37, Section 1, as amended) is amended to read:

"40-2-1. MUTUAL OBLIGATION OF MARRIED PERSONS.--[Section 1. Husband and wife] The parties to a marriage contract toward each other obligations of mutual respect, fidelity and support."

SECTION 17. Section 40-2-2 NMSA 1978 (being Laws 1907, Chapter 37, Section 4, as amended) is amended to read:

"40-2-2. CONTRACT RIGHTS OF MARRIED PERSONS.--[Sec. 7.] Either [husband or wife] spouse may enter into any engagement or transaction with the other or with any other person [respecting] with respect to property [which] that either might enter into if unmarried; subject, in transactions between themselves, to the general rules of common law [which] that control the actions of persons occupying confidential relations with each other."

SECTION 18. Section 40-2-3 NMSA 1978 (being Laws 1901, Chapter 62, Section 20, as amended) is amended to read:

"40-2-3. POWER OF ATTORNEY--JOINDER OF SPOUSE UNNECESSARY.--[Sec. 8.] It shall not be necessary in any case for [the husband] a spouse to join with [the wife] a signing spouse when [she executes] executing a power of attorney for [herself; nor shall it be necessary for the wife to join with the husband when he executes a power of attorney for himself] the signing spouse."

SECTION 19. Section 40-2-8 NMSA 1978 (being Laws 1907, Chapter 37, Section 5, as amended) is amended to read:

"40-2-8. EXTENT OF MUTUAL ALTERATION OF LEGAL RELATIONS.--[Sec. 39. A husband and wife] The parties to a marriage cannot by any contract with each other alter their legal relations, except [of] with respect to their property and except that they may agree in writing to an immediate separation and may make provisions for the support of either of them and of their children during their separation."

SECTION 20. Section 40-3-1 NMSA 1978 (being Laws 1907, Chapter 37, Section 21, as amended) is amended to read:

"40-3-1. PROPERTY RIGHTS.--[Sec. 29.] The property rights of [husband and wife] a married couple are governed by [this] Chapter 40 NMSA 1978 unless there is a marriage settlement containing stipulations contrary thereto."

SECTION 21. Section 40-3-2 NMSA 1978 (being Laws 1907, Chapter 37, Section 7, as amended) is amended to read:

"40-3-2. METHODS FOR HOLDING PROPERTY.--[Sec. 13. Husband and wife] The parties to a marriage may hold property as joint tenants or tenants in common or may hold property as community property."

SECTION 22. Section 40-3-3 NMSA 1978 (being Laws 1907, Chapter 37, Section 3, as amended) is amended to read:

"40-3-3. SEPARATION OF PROPERTY--ADMISSION TO DWELLING OF SPOUSE.--[Sec. 6.] Neither [husband nor wife] spouse has any interest in the property of the other, but neither can be excluded from the other's dwelling."

SECTION 23. Section 40-3-4 NMSA 1978 (being Laws 1965, Chapter 74, Section 1) is amended to read:

"40-3-4. CONTRACTS OF INDEMNITY--NO OBLIGATION OF COMMUNITY PROPERTY UNLESS SIGNED BY BOTH [HUSBAND AND WIFE] SPOUSES.--It is against the public policy of this state to allow one spouse to obligate community property by entering into a contract of indemnity whereby [he will indemnify] the spouse indemnifies a surety company in case of default of the principal upon a bond or undertaking issued in consideration of the contract of indemnity. No community property shall be liable for any indebtedness incurred as a result of any contract of indemnity made after the effective date of this section unless both [husband and wife] spouses sign the contract of indemnity."

SECTION 24. Section 40-3-8 NMSA 1978 (being Laws 1973, Chapter 320, Section 3, as amended) is amended to read:

"40-3-8. CLASSES OF PROPERTY.--

A. "Separate property" means:

(1) property acquired by either spouse before marriage or after entry of a decree of dissolution of marriage;

(2) property acquired after entry of a decree entered pursuant to Section 40-4-3 NMSA 1978, unless the decree provides otherwise;

(3) property designated as separate property by a judgment or decree of any court having jurisdiction;

(4) property acquired by either spouse by gift, bequest, devise or descent; and

(5) property designated as separate property by a written agreement between the spouses, including a deed or other written agreement concerning property held by the spouses as joint tenants or tenants in common in which the property is designated as separate property.

B. Except as provided in Subsection C of this section, "community property" means property acquired by either or both spouses during marriage [which] that is not separate property. Property acquired [by a husband and wife] during a marriage by an instrument in writing whether as tenants in common or as joint tenants or otherwise shall be presumed to be held as community property unless such property is separate property within the meaning of Subsection A of this section.

C. "Quasi-community property" means all real or personal property, except separate property as defined in Subsection A of this section, wherever situated, heretofore or hereafter acquired in any of the following ways:

(1) by either spouse while domiciled elsewhere [which] that would have been community property if the spouse who acquired the property had been domiciled in this state at the time of its acquisition; or

(2) in exchange for real or personal property, wherever situated, [which] that would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition.

D. For purposes of division of property incident to a dissolution of marriage or a legal separation under Section 40-4-3 NMSA 1978, quasi-community property shall be treated as community property if both parties are domiciliaries of New Mexico at the time of the dissolution or legal separation proceeding.

E. "Property" includes the rents, issues and profits thereof.

F. The right to hold property as joint tenants or as tenants in common and the legal incidents of so holding, including but not limited to the incident of the right of survivorship of joint tenancy, are not altered by the Community Property Act of 1973, except as provided in Sections 40-3-10, 40-3-11 and 40-3-13 NMSA 1978.

[G. The provisions of the 1984 amendments to this section shall not affect the right of any creditor, which right accrued prior to the effective date of those amendments.]"

SECTION 25. Section 40-3-12 NMSA 1978 (being Laws 1973, Chapter 320, Section 7) is amended to read:

"40-3-12. PRESUMPTION OF COMMUNITY PROPERTY [PRESUMPTION OF SEPARATE PROPERTY WHERE PROPERTY ACQUIRED BY MARRIED WOMAN PRIOR TO JULY 1, 1973].--[A.] Property acquired during marriage by either [husband or wife] spouse, or both, is presumed to be community property.

[B. Property or any interest therein acquired during marriage by a woman by an instrument in writing, in her name alone or in her name and the name of another person not her husband, is presumed to be the separate property of the married woman if the instrument in writing was delivered and accepted prior to July 1, 1973. The date of execution or, in the absence of a date of execution, the date of acknowledgment is presumed to be the date upon which delivery and acceptance occurred.

C. The presumptions contained in Subsection B of this section are conclusive in favor of any person dealing in good faith and for valuable consideration with a married woman or her legal representative or successor in interest.]"

SECTION 26. Section 40-4-1 NMSA 1978 (being Laws 1973, Chapter 319, Section 1) is amended to read:

"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 of:

A. incompatibility between the parties to the marriage; or

B. [cruel and inhuman treatment;

C. adultery; or

D. abandonment] the marriage is void, voidable or invalid."

SECTION 27. Section 40-4-2 NMSA 1978 (being Laws 1973, Chapter 319, Section 2) is amended to read:

"40-4-2. INCOMPATIBILITY.--

A. Incompatibility exists between the parties when, because of discord or conflict of personalities, [the legitimate ends of the marriage relationship are destroyed, preventing any reasonable] there exists no expectation of reconciliation.

B. When a dissolution is sought on the grounds of incompatibility, the district court shall accept the pleading of incompatibility to be sufficient evidence that incompatibility exists."

SECTION 28. A new Section 40-4-2.1 NMSA 1978 is enacted to read:

"40-4-2.1. [NEW MATERIAL] VOID, VOIDABLE AND INVALID MARRIAGES.--

A. A marriage is void if the marriage is incestuous, as provided in Section 40-1-7 NMSA 1978.

B. A marriage is voidable if at least one party to the marriage was under the age of eighteen at the time the marriage was solemnized and that party has not yet reached the age of nineteen.

C. A marriage is invalid if it is polygamous or plural; provided that a marriage that was initially valid that later became polygamous or plural is not invalid as to the initial, valid marriage, but any polygamous or plural additions to the valid marriage are invalid."

SECTION 29. Section 40-4-3 NMSA 1978 (being Laws 1901, Chapter 62, Section 23, as amended) is amended to read:

"40-4-3. PROCEEDING FOR DIVISION OF PROPERTY, DISPOSITION OF CHILDREN OR ALIMONY WITHOUT THE DISSOLUTION OF MARRIAGE.--Whenever the [husband and wife] parties to a marriage have permanently separated and no longer live or cohabit together as [husband and wife] a married couple, 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."

SECTION 30. A new Section 40-4-5.1 NMSA 1978 is enacted to read:

"40-4-5.1. [NEW MATERIAL] DISSOLUTION OF MARRIAGE--VOID, VOIDABLE OR INVALID MARRIAGES.--

A. When a verified petition for dissolution of marriage alleges that the marriage is void, voidable or invalid, if the underlying allegations that would make the marriage void, voidable or invalid is:

(1) not contested, the court may accept the uncontested representation that a factual basis exists for a finding to be entered that the marriage is void, voidable or invalid; or

(2) contested, the district court shall hold a hearing to determine if a factual basis exists for a finding to be entered that the marriage is void, voidable or invalid.

B. After entering an order of dissolution of a marriage on the grounds of the marriage being void, voidable or invalid, the court, sitting as a court of equity, shall apply the laws of this state regarding community property, child support and spousal support in the same manner as if the marriage had been entered into lawfully.

C. In a cause of action for dissolution of marriage instituted by a person who alleges that at the time of the marriage the parties to the marriage were relatives within the prohibited degrees based on the laws in effect at the time that the marriage was entered into, and regardless of whether the void marriage was entered into in this state, upon a finding that a factual basis exists, the district court shall enter a decree that such incestuous marriage is void and enter a decree dissolving the marriage.

D. In a cause of action for dissolution of marriage instituted by a person, next friend or a parent or guardian of the person, who alleges that at the time of the marriage the person was a minor and has not yet attained the age of nineteen, and regardless of whether the voidable marriage was entered into in this state, upon a finding that a factual basis exists, the district court shall enter a decree that such marriage is voidable and enter a decree dissolving the marriage. The court may, in its discretion, grant spousal support until the minor emancipates, remarries or reaches the age of nineteen. If the parties should remain married until each of the parties to the marriage has attained the age of nineteen, the marriage shall no longer be considered voidable.

E. In a cause of action for dissolution of marriage instituted by a person who alleges that the marriage is polygamous or plural, and regardless of whether the invalid marriage was entered into in this state or was entered into lawfully beyond this state, upon a finding that a factual basis exists, the district court shall enter a decree that such marriage or portion of such marriage is invalid and enter a decree dissolving the marriage in its entirety or dissolving the marriage as it applies to the petitioner. The court may determine whether a marriage that was initially between two parties but that later became polygamous or plural is invalid as to all parts of the marriage or if only the polygamous or plural additions to the initial marriage are invalid. If the court determines a party to a polygamous or plural marriage was unaware of the polygamous or plural nature of the marriage, that party's community property rights shall not be abrogated. A polygamous or plural marriage is contrary to the Compact with the United States.

F. When a court enters an order for dissolution of a marriage pursuant to this section, the court shall send a copy of the decree to the district attorney."

SECTION 31. Section 40-4-12 NMSA 1978 (being Laws 1947, Chapter 16, Section 1, as amended) is amended to read:

"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] married persons, 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."

SECTION 32. Section 40-4-14 NMSA 1978 (being Laws 1947, Chapter 16, Section 3, as amended) is amended to read:

"40-4-14. ALLOWANCE IN PROPERTY--APPOINTMENT AND REMOVAL OF GUARDIAN.--In proceedings for the dissolution of marriage, separation or support between [husband and wife] spouses, the court may make an allowance of certain property [or properties] of either party or of both parties for the maintenance, education and support of the minor children of the parties and may vest title to the part of the property so allowed in a conservator appointed by the court. The conservator must qualify and serve in such capacity as provided in Sections [5-101 through 5-502 of the Probate Code] 45-5-101 through 45-5-502 NMSA 1978 and the Uniform Power of Attorney Act."

SECTION 33. Section 40-4-20 NMSA 1978 (being Laws 1901, Chapter 62, Section 31, as amended) is amended to read:

"40-4-20. FAILURE TO DIVIDE OR DISTRIBUTE PROPERTY ON THE ENTRY OF A DECREE OF DISSOLUTION OF MARRIAGE OR SEPARATION--DISTRIBUTION OF SPOUSAL OR CHILD SUPPORT AND DETERMINATION OF PATERNITY WHEN DEATH OCCURS DURING PROCEEDINGS FOR DISSOLUTION OF MARRIAGE, SEPARATION, ANNULMENT OF MARRIAGE OR PATERNITY.--

A. The failure to divide or distribute property on the entry of a decree of dissolution of marriage or of separation shall not affect the property rights of either [the husband or wife] party to a marriage, and either may subsequently institute and prosecute a suit for division and distribution or with reference to any other matter pertaining thereto that could have been litigated in the original proceeding for dissolution of marriage or separation.

B. Upon the filing and service of a petition for dissolution of marriage, separation, annulment, division of property or debts, spousal support, child support or determination of paternity pursuant to the provisions of Chapter 40, Article 4 or [11] 11A NMSA 1978, if a party to the action dies during the pendency of the action, but prior to the entry of a decree granting dissolution of marriage, separation, annulment or determination of paternity, the proceedings for the determination, division and distribution of marital property rights and debts, distribution of spousal or child support or determination of paternity shall not abate. The court shall conclude the proceedings as if both parties had survived. The court may allow the spouse or any children of the marriage support as if the decedent had survived, pursuant to the provisions of Chapter 40, Article 4 or [11] 11A NMSA 1978. In determining the support, the court shall, in addition to the factors listed in Chapter 40, Article 4 NMSA 1978, consider the amount and nature of the property passing from the [decendent] decedent to the person for whom the support would be paid, whether by will or otherwise."

SECTION 34. Section 40-10A-310 NMSA 1978 (being Laws 2001, Chapter 114, Section 310) is amended to read:

"40-10A-310. HEARING AND ORDER.--

[(a)] A. Unless the court issues a temporary emergency order pursuant to Section [204] 40-10A-204 NMSA 1978, upon a finding that a petitioner is entitled to immediate physical custody of the child, the court shall order that the petitioner may take immediate physical custody of the child unless the respondent establishes that:

(1) the child-custody determination has not been registered and confirmed under Section [305] 40-10A-305 NMSA 1978 and that:

[(A)] (a) the issuing court did not have jurisdiction under [Article 2 of the Uniform Child-Custody Jurisdiction and Enforcement Act] Sections 40-10A-201 through 40-10A-210 NMSA 1978;

[(B)] (b) the child-custody determination for which enforcement is sought has been vacated, stayed or modified by a court of a state having jurisdiction to do so under [Article 2 of the Uniform Child-Custody Jurisdiction and Enforcement Act] Sections 40-10A-201 through 40-10A-210 NMSA 1978; or

[(C)] (c) the respondent was entitled to notice, but notice was not given in accordance with the standards of Section [108] 40-10A-108 NMSA 1978 in the proceedings before the court that issued the order for which enforcement is sought; or

(2) the child-custody determination for which enforcement is sought was registered and confirmed under Section [305] 40-10A-305 NMSA 1978 but has been vacated, stayed or modified by a court of a state having jurisdiction to do so under [Article 2 of the Uniform Child-Custody Jurisdiction and Enforcement Act] Sections 40-10A-201 through 40-10A-210 NMSA 1978.

[(b)] B. The court shall award the fees, costs and expenses authorized under Section [312] 40-10A-312 NMSA 1978 and may grant additional relief, including a request for the assistance of law enforcement officials, and set a further hearing to determine whether additional relief is appropriate.

[(c)] C. If a party called to testify refuses to answer on the ground that the testimony may be self-incriminating, the court may draw an adverse inference from the refusal.

[(d)] D. A privilege against disclosure of communications between spouses and a defense of immunity based on the spousal relationship [of husband and wife] or that of parent and child may not be invoked in a proceeding under [Article 3 of the Uniform Child-Custody Jurisdiction and Enforcement Act] Sections 40-10A-301 through 40-10A-317 NMSA 1978."

SECTION 35. REPEAL.--Sections 40-1-16 and 40-1-20 NMSA 1978 (being Laws 1905, Chapter 65, Section 5 and Laws 1909, Chapter 91, Section 1, as amended) are repealed.

SECTION 36. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2024.

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