0001| AN ACT | 0002| RELATING TO DOMESTIC AFFAIRS; PROVIDING FOR A BINDING ARBITRATION | 0003| OPTION DURING A DISSOLUTION OF MARRIAGE PROCEEDING; ENACTING A SECTION | 0004| OF THE NMSA 1978. | 0005| | 0006| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0007| Section 1. A new section of Chapter 40 NMSA 1978 is enacted to | 0008| read: | 0009| "BINDING ARBITRATION OPTION--PROCEDURE.-- | 0010| A. Parties to any action for divorce, separation, custody | 0011| or time-sharing, child support, spousal support, marital property and | 0012| debt division or attorney fees related to such matters, including any | 0013| post-judgment proceeding related to such action, may stipulate to | 0014| binding arbitration by a signed agreement that provides for an award | 0015| with respect to one or more of the following issues: | 0016| (1) valuation and division of real and personal | 0017| property; | 0018| (2) child support, custody, time-sharing or | 0019| visitation; | 0020| (3) spousal support; | 0021| (4) costs, expenses and attorney fees; | 0022| (5) enforceability of prenuptial and post-nuptial | 0023| agreements; | 0024| (6) determination and allocation of responsibility | 0025| for debt as between the parties; | 0001| (7) any civil tort claims related to any of the | 0002| foregoing; or | 0003| (8) other contested domestic relations matters. | 0004| B. A court may not order a party to participate in | 0005| arbitration except to the extent a party has agreed to participate | 0006| under a written arbitration agreement. | 0007| C. Arbitration under this section may be heard by one or | 0008| more arbitrators. The court shall appoint an arbitrator agreed to by | 0009| the parties if the arbitrator consents to the appointment. | 0010| (1) If the parties have not agreed to an arbitrator, | 0011| the court shall appoint an arbitrator who shall meet the following | 0012| qualifications: | 0013| (a) is an attorney in good standing with the | 0014| state bar of New Mexico; and | 0015| (b) has practiced as an attorney for not less | 0016| than five years immediately preceding the appointment, and actively | 0017| practiced in the area of domestic relations, including domestic | 0018| violence, during three of those five years. Any period of time during | 0019| which an individual serves as a judge, special master or child support | 0020| hearing officer is considered as actively practicing in the area of | 0021| domestic relations; or | 0022| (c) is another professional licensed and | 0023| experienced in the subject matter which is the area of the dispute. | 0024| (2) An arbitrator appointed pursuant to this section | 0025| is immune from liability in regard to the arbitration proceeding to | 0001| the same extent as the judge who has jurisdiction of the action that | 0002| is submitted to arbitration. | 0003| (3) Objections to the qualifications of an arbitrator | 0004| must be raised in connection with the appointment by the court or they | 0005| are waived. The court will permit parties to raise objections based | 0006| on qualifications within ten days of appointment of an arbitrator by | 0007| the court. Parties who agree on an arbitrator waive objections to | 0008| their qualifications. | 0009| D. An arbitrator appointed under this section: | 0010| (1) shall hear and make an award on each issue | 0011| submitted for arbitration under the arbitration agreement subject to | 0012| the provisions of the agreement; and | 0013| (2) has all of the following powers and duties: | 0014| (a) to administer an oath or issue a subpoena as | 0015| provided by court rule; | 0016| (b) to issue orders regarding discovery | 0017| proceedings relative to the issues being arbitrated, including among | 0018| others, appointment of experts; and | 0019| (c) to allocate arbitration fees and expenses | 0020| between the parties, including imposing a fee or expense on a party or | 0021| attorney as a sanction for failure to provide information, subject to | 0022| provisions of the arbitration agreement. | 0023| E. An arbitrator, attorney or party in an arbitration | 0024| proceeding under this section shall disclose in writing any | 0025| circumstances that may affect an arbitrator's impartiality, including, | 0001| but not limited to, bias, financial interests, personal interests or | 0002| family relationships. Upon disclosure of such a circumstance, a party | 0003| may request disqualification of the arbitrator. If the arbitrator | 0004| does not withdraw within seven days after a request for | 0005| disqualification, the party may file a motion for disqualification | 0006| with the court. | 0007| F. If the court finds that the arbitrator is disqualified, | 0008| the court may appoint another arbitrator, subject to the provisions of | 0009| the arbitration agreement. | 0010| G. As soon as practicable after the appointment of the | 0011| arbitrator, the parties and attorneys shall confer with the arbitrator | 0012| to consider all of the following: | 0013| (1) scope of the issues submitted; | 0014| (2) date, time and place of any hearing; | 0015| (3) witnesses, including experts, who may testify; | 0016| (4) appointment of experts, if any, and schedule for | 0017| exchange of expert reports or summary of expert testimony; and | 0018| (5) subject to Subsection H of this section, | 0019| exhibits, documents or other information each party considers material | 0020| to the case and a schedule for production or exchange of the | 0021| information. An objection not made before the hearing to production | 0022| or lack of production of information is waived. | 0023| H. The arbitrator shall order reasonable access to | 0024| information for each party that is material to the arbitration issues | 0025| prior to the hearing, including the following: | 0001| (1) a current complete sworn financial disclosure | 0002| statement, when financial matters are at issue; | 0003| (2) if a court has issued an order concerning an | 0004| issue subject to arbitration, a copy of the order; | 0005| (3) any relevant documents related to the arbitration | 0006| issues defined by the arbitrator; | 0007| (4) proposed award by each party for each issue | 0008| subject to arbitration; and | 0009| (5) expert opinions of any experts to be used by | 0010| either party or appointed by the arbitrator. | 0011| I. Except as provided by this section, court rule or the | 0012| arbitration agreement, a record shall not ordinarily be made of an | 0013| arbitration hearing under this section unless either party requests | 0014| it. If a record is not required, an arbitrator may make a record to | 0015| be used only by the arbitrator to aid in reaching the decision. | 0016| J. Unless waived by the parties, a record shall be made of | 0017| that portion of any hearing that concerns child custody, visitation or | 0018| time-sharing. | 0019| K. The arbitration agreement may set forth any standards on | 0020| which an award should be based, including any law to be applied. | 0021| L. Unless otherwise agreed by the parties and arbitrator in | 0022| writing or on the record, the arbitrator shall issue the written award | 0023| on each issue within sixty days after the end of the hearing and after | 0024| receipt of proposed findings of fact and conclusions of law if | 0025| requested by the arbitrator. | 0001| M. If the parties reach an agreement regarding child | 0002| custody, time-sharing or visitation, the agreement shall be placed on | 0003| the record by the parties under oath and shall be included in the | 0004| arbitrator's written award. | 0005| N. The arbitrator retains jurisdiction to correct errors or | 0006| omissions in an award upon motion by a party to the arbitrator within | 0007| twenty days after the award is issued or upon the arbitrator's own | 0008| motion. Another party to the arbitration may respond to the motion | 0009| within seven days after the motion is made. The arbitrator shall make | 0010| a decision on the motion within seven days after the expiration of the | 0011| response time period. | 0012| O. The court shall enforce an arbitrator's award or other | 0013| order issued under this section in the same manner as an order issued | 0014| by the court. A party may make a motion to the court to enforce an | 0015| arbitrator's award or order. | 0016| P. Any party in an action that was submitted to arbitration | 0017| under this section shall file with the court a stipulated order, or a | 0018| motion to enforce the award within twenty-one days after the | 0019| arbitrator's award is issued unless otherwise agreed to by the parties | 0020| in writing or unless the arbitrator or court grants an extension. | 0021| Q. If a party applies to the court for vacation of an | 0022| arbitrator's award in binding arbitration issued under this section | 0023| that concerns child custody, time-sharing or visitation, the court | 0024| shall review the award based only upon any record of the arbitration | 0025| hearing and any factual matters that have arisen since the arbitration | 0001| hearing that are relevant to the claim. The court may vacate an award | 0002| of custody, time-sharing or visitation made in binding arbitration if | 0003| the court finds that circumstances have changed since issuance of the | 0004| award that are adverse to the best interests of the child, upon a | 0005| finding that the award will cause harm or be detrimental to a child, | 0006| or pursuant to Subsections R and S of this section. An arbitration | 0007| agreement may provide a broader scope of review of custody, time- | 0008| sharing or visitation issues by the court, and such review will apply | 0009| if broader than this section. | 0010| R. If a party applies to the court for vacation or | 0011| modification of an arbitrator's award issued under this section, the | 0012| court shall review the award only as provided in this section. | 0013| S. If a party applies under this section, the court may | 0014| vacate, modify or correct an award under any of the following | 0015| circumstances: | 0016| (1) the award was procured by corruption, fraud or | 0017| other undue means; | 0018| (2) there was evident partiality by an arbitrator, or | 0019| misconduct prejudicing a party's rights; | 0020| (3) the arbitrator exceeded his powers; or | 0021| (4) the arbitrator refused to postpone the hearing on | 0022| a showing of sufficient cause or refused to hear evidence substantial | 0023| and material to the controversy. | 0024| T. An application to vacate an award on grounds stated in | 0025| Subsections R and S of this section shall be decided by the court. If | 0001| an award is vacated in grounds stated in Paragraph (3) or (4) of | 0002| Subsection S of this section, the court may order a rehearing before | 0003| the arbitrator who made the award. | 0004| U. An appeal from an arbitration award under this | 0005| section that the court confirms, vacates, modifies or corrects | 0006| shall be taken in this same manner as from an order or judgment in | 0007| other domestic relations actions." |