SB0295

SENATE BILL 295

56th legislature - STATE OF NEW MEXICO - first session, 2023

INTRODUCED BY

Daniel A. Ivey-Soto and Susan K. Herrera

AN ACT

RELATING TO DOMESTIC AFFAIRS; CLARIFYING THE PROCESS OF SOLEMNIZATION, LICENSURE AND CONTRACTS FOR MARRIAGE; PROVIDING DEFINITIONS; PROVIDING A FORM; PROVIDING CIRCUMSTANCES FOR VOIDABLE MARRIAGES; AMENDING FEES; PRESCRIBING MARRIAGE RECORDING AND INDEXING GUIDELINES; AMENDING PENALTIES; REVISING TERMS THAT DESCRIBE PARTIES TO A MARRIAGE; CLARIFYING PROPERTY RIGHTS; REPEALING SECTIONS OF CHAPTER 40, ARTICLE 1 NMSA 1978; PROVIDING A DELAYED REPEAL.

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. "civil officer" means a person who is:

(1) an actively serving official elected to any nonjudicial office established by the constitution of New Mexico, the laws of this state, including its political subdivisions, or the United States constitution;

(2) an attorney licensed to practice law in this state;

(3) a notarial officer; or

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

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

C. "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;

D. "military officer" means a person who is a commissioned officer of:

(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;

(3) the army national guard division, the air national guard division, the state defense force division or the civil air patrol division of the department of military affairs; or

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

E. "registered marriage officer" means a person who desires to solemnize a civil contract of marriage and who, before solemnizing such civil contract of marriage, has filed a notarized statement in the previous two years with the county clerk who issued the marriage license attesting that the person is at least eighteen years of age and desires to be a registered marriage officer;

F. "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;

G. "religious society" means a nonprofit 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; "religious society" does not include a society, organization, institution, service or corporation, whether for profit or nonprofit, whose primary purpose is to provide ordinations or authorizations for the purpose of solemnizing the civil contract of marriage;

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

(1) ordained as clergy by a religious society;

(2) authorized to solemnize the civil contract of marriage by the rites, rules or customs of a religious society; and

(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;

I. "retired officer" means a person who has served a cumulative of at least eight years as a justice, judge, elected official or military officer; provided that a person who has served at least eight years as:

(1) a justice or judge may also be referred to as a "retired judicial officer";

(2) an elected official may also be referred to as a "retired elected officer"; and

(3) a military officer may also be referred to as a "retired military officer"; and

J. "solemnize" means to join in marriage before:

(1) witnesses by means of a ceremony; or

(2) the county clerk or deputy county clerk by contract in the county clerk's office."

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] a civil contract of marriage entered into pursuant to the laws of this state shall only be solemnized:

(1) in a ceremony celebrated within the territorial limits of this state using a license issued by a county clerk of this state; or

(2) by contract at the county clerk's office at the time the license is issued.

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.] The civil contract of marriage may be solemnized in a ceremony in this state by a:

(1) civil officer;

(2) judicial officer;

(3) military officer;

(4) registered marriage officer;

(5) religious officer; or

(6) retired officer.

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 a contract of marriage.

D. The civil contract of marriage may be solemnized in the county clerk's office at the time the license is issued. Marriage by contract before the county clerk or deputy county clerk issuing the license pursuant to this subsection does not require a ceremony or witnesses."

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 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. A religious officer may solemnize the contract of marriage without regard to the sect or rites and customs the person may practice.

C. 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.

D. 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.

E. 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; provided that a marriage celebrated beyond the limits of this state pursuant to Chapter 40, Article 1 NMSA 1978 that is declared void as contrary to the compact with the United States is void in this state notwithstanding the laws of the state or country wherein the marriage was celebrated or contracted.

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."

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 person [sixteen or seventeen years of age, 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] under the age of eighteen. A marriage with or between persons under the prohibited age is voidable as provided in this section by or on behalf of a party to the marriage who was a minor at the time of the ceremony purporting to solemnize the civil contract of marriage.

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] A person who at the time of the marriage in this state was a minor and who has not attained the age of nineteen may file, under oath, a notice of void marriage at the office of the county clerk where the original marriage license was filed. No party to the marriage who was over the prohibited age at the time of the marriage may file a notice of void marriage at the office of the county clerk.

C. A cause of action shall not be required for the dissolution of a voidable marriage entered into in this state, but upon a cause of action instituted by a person who at the time of the marriage was a minor and who has not attained the age of nineteen, by next friend or a parent or legal guardian of the minor or by the district attorney, regardless of whether the voidable marriage was entered into in this state, the district court shall enter a decree declaring such marriage to a minor void. The court may, in its discretion, grant alimony until the minor emancipates, remarries or reaches the age of nineteen. No party to the marriage who was over the prohibited age at the time of the marriage shall be allowed to apply for or obtain a decree of the court declaring the marriage void.

D. If the parties should remain married until each of the parties has attained the age of nineteen, the marriage shall not be voidable."

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] A. The following marriages between relations [and children, including] are void:

(1) grandparents [and] with grandchildren, [of all degrees; between] including great-grandparents with great-grandchildren;

(2) parents with children;

(3) siblings, being brothers [and] or sisters; [of full blood or of half blood; between]

(4) cousins; and

(5) aunts or uncles, [and] with nieces [and between aunts and] or nephews [are declared incestuous and absolutely void].

B. A marriage between relatives within the prohibited degrees at the time the civil contract of marriage was solemnized is declared void.

C. A person who was within the prohibited degree of relations at the time of a marriage in this state may file, under oath, a notice of void marriage at the office of the county clerk where the original marriage license was filed.

D. No cause of action is required for the dissolution of a void marriage entered into in this state, but upon a cause of action instituted by a party to the marriage or by the district attorney, regardless of whether the void marriage was entered into in this state, the district court shall enter a decree declaring such incestuous marriage 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--VOID.--Pursuant to Section 1 of the Compact with the United States, polygamous or plural marriages are prohibited in this state. A polygamous or plural marriage in this state is declared void as contrary to the Compact with the United States, regardless of whether the marriage was initially celebrated in this state or became polygamous or plural in this state; provided that:

A. a marriage that was initially entered into lawfully that later became polygamous or plural is not void with regard to the initial marriage, but any polygamous or plural additions to the initial marriage are declared void as contrary to the Compact with the United States, regardless of whether the initial marriage or additions to the marriage were initially celebrated in this state;

B. a person who has entered into a polygamous or plural marriage in this state may file, under oath, a notice of void marriage as to that person at the office of the county clerk where the original marriage license was filed;

C. no cause of action is required for the dissolution of a void marriage or those aspects of a marriage that are void pursuant to this section if entered into in this state, but upon a cause of action instituted by any person, regardless of whether the void marriage or those aspects of the marriage which are void were entered into in this state, the district court shall enter a decree declaring such polygamous or plural marriage void or the polygamous or plural aspects of a marriage void; and

D. upon entering a decree pursuant to this section, the district court shall send a copy of the decree to the district attorney."

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. A marriage license may be used in a ceremony conducted within six months of obtaining the marriage license. If the ceremony is not conducted within six months of issuance of the marriage license, the license shall expire and may not be used to solemnize the civil contract of marriage.

B. A marriage license shall be issued to any couple in New Mexico who otherwise qualifies 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.

[B.] C. To obtain a marriage license, the couple shall personally appear at the office of the county clerk or before the county clerk or an assigned deputy county clerk issuing the license and provide sufficient identification to satisfy the county clerk or 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.] D. 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, 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.--The county clerk shall receive a fee of [twenty-five dollars ($25.00)] fifty dollars ($50.00) for each of the following instruments and, except as otherwise provided in this section, such fees shall be deposited in the county clerk recording and filing fund for:

A. issuing, acknowledging and recording a marriage license and marriage certificate, unless neither party to the marriage has an address in the county, in which case the fee shall be one hundred dollars ($100), and of which fifteen dollars ($15.00) of each fee for issuing, acknowledging and recording a marriage license and marriage certificate 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;

B. recording a form submitted by a person desiring to be a registered marriage officer;

C. recording a notice of void marriage for reason of one or both of the parties being below the permitted age, for reason that the marriage is incestuous or for reason that the marriage or aspects of the marriage are polygamous or plural; or

D. 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."

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 by ceremony 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 by ceremony or by contract 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 physical or electronic book kept for that purpose.

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.

C. As used on the forms, a person who possesses more than one title authorizing the person to solemnize the civil contract of marriage shall select a single title to use on a marriage certificate. Titles of persons solemnizing the civil contract of marriage by ceremony are:

(1) civil officer, including the use of:

(a) a specified elected office the person holds;

(b) attorney and counselor to the court;

(d) a title used by a civil officer of an Indian nation, tribe or pueblo;

(2) judicial officer, including the use of the justice's or judge's specific title and court;

(3) military officer, including the use of the military officer's branch and rank;

(4) registered marriage officer;

(5) religious officer, including the use of:

(a) the officer's religious society; and

(b) the title of the officer or the officer's ordination within a religious society; or

(6) retired officer, including the use of:

(a) "retired elected officer", which may substitute the title of the office to which a person was elected following the word "retired";

(b) "retired judicial officer", which may substitute the title of the judicial office that the person held following the word "retired"; or

(c) "retired military officer", which may substitute the branch and rank that the person held following the word "retired"."

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 there exists no legal impediment to this marriage; and that the information contained herein is 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 __________________________] 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 state, 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 (to be filled out when marriage is entered into by ceremony):

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 40-1-18.2 NMSA 1978 is enacted to read:

"40-1-18.2. [NEW MATERIAL] FORM OF AUTHORIZATION TO SOLEMNIZE MARRIAGES.--

"Authorization to Solemnize Marriages by Registered Marriage Officer

(Print Clearly or Type)

State of New Mexico,

ss.

County of _____________.

Let it be Known to All:

1) I desire to be a Registered Marriage Officer to solemnize the civil contract of marriage in New Mexico.

2) This means I will be authorized to perform marriage ceremonies pursuant to the laws of New Mexico, specifically, Chapter 40, Article 1 NMSA 1978.

3) I attest under penalty of perjury that I am at least eighteen (18) years of age.

4) I understand that this attestation to become a Registered Marriage Officer is valid for me to be authorized to perform marriage ceremonies and to solemnize the civil contract of marriage for the next two years on licenses issued by the county clerk of the county in which this form is recorded.

_______________________________

(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. A new Section 40-3-12.1 NMSA 1978 is enacted to read:

"40-3-12.1. [NEW MATERIAL] SAVING CLAUSE--PRESUMPTION OF SEPARATE PROPERTY WHERE PROPERTY IS ACQUIRED BY A MARRIED WOMAN PRIOR TO JULY 1, 1973.--

A. 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.

B. The presumptions contained in Subsection A 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 27. 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 28. 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 29. 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."

SECTION 30. 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 31. 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 32. 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 33. DELAYED REPEAL.--Section 26 of this 2023 act is repealed effective June 30, 2033.

SECTION 34. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2023.

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