Legislation Detail
CS/HB 242 MARRIAGE & DIVORCE CHANGES
Actions: [3] not prntd-HRC [4] w/drn-prntd-ref- HGEIC/HJC-HGEIC- DP-HJC [10] DNP-CS/DP
Scheduled: Not Scheduled
House Bill 242 (HB 242): This legislative bill introduces comprehensive changes to the New Mexico Marriage Code, allowing for marriage ceremonies conducted through remote communication technology, modifying marriage license expiration dates, and addressing various aspects of marriage dissolution. The bill also includes provisions related to fees, penalties for unlawful issuance of marriage licenses, and the preservation of marriage records. Additionally, it grants religious organizations immunity from liability for refusing to provide services for marriages that violate their religious beliefs.Legislation Overview:
House Bill 242 (HB 242): Section 1: Definitions: A new section 40-1-1.1 NMSA 1978 (As used in Chapter 40, Article 1): • This section defines the following: Indian Nation, Judicial Officer, Religious ceremony, religious officer, religious society, solemnize, uniform services, witnesses. Section 2: Section 40-1-2 NMSA 1978 (being Laws 1859-1860, p. 120, as amended) MARRIAGES SOLEMNIZED: • Explains the contract of marriage is entered into when solemnized as provided in Chapter 40, Article 1, NMSA 1978. • Explanation as to “who” can solemnize a marriage contract. • A judicial officer may not charge a fee for their services. Section 3: Section 40-1-3 NMSA 1978 (being laws 1862-1863, p. 66): CEREMONY BY A RELIGIOUS SOCIETY OR INDIAN NATION OR TRIBE OR PUEBLO: • These entities are not required to perform a ceremony. Section 4: Section 40-1-4 NMSA 1978 (being Laws 1862-1863, p. 64, as amended): FOREIGN MARRIAGES RECOGNIZED: • The State of New Mexico will recognize a marriage that took place in another part of the United States and abroad. • Marriages will be recognized as legal, regardless of the sex, sexual orientation, gender, gender identity, race, ethnicity or national orientation of those individuals. Section 5: Section 40-1-6 NMSA 1978 (being Laws 2013, Chapter 144, Section 4): MARIAGE OF MINORS: • No license will be issued to a person under the age of 18. Section 6: Section 40-1-7 NMSA 1978 (being Laws 1876, Chapter 31, Section 1, as amended): INCESTUOUS MARRIAGE: • Incestuous marriage will be void in the State of New Mexico. • This section defines what is considered incestuous. Section 7: Section 40-1-9 NMSA 1978 (being Laws 1876, Chapter 32, Section 1, as amended) is repealed and a new Section 40-1-9 is appealed. POLYGAMOUS OR PLURAL MARRIAGES: • These types of marriages are prohibited in the State of New Mexico. Section 8: Section 40-1-10 NMSA 1978 (being Laws 1905, Chapter 65, Section 1, as amended) – LICENSE REQUIRED: • The County Clerk is authorized to provide a free marriage license. • To obtain a marriage license the couple must appear in person with identification. • Deputy County Clerk will verify the identification, residency. Section 9: Section 40-1-11 NMSA 1978 (being Laws 1957, Chapter 33, Section 1, as amended)- FEES: The county clerk will receive a fee of $40.00 for the following: • Recording a marriage license. • Recording a decoration submitted by a member of the uniformed services who is deployed or activated to a duty assignment. • Fees will be deposited into the county clerks recording and filing fund. Section 10: Section 40-1-14 NMSA 1978 (being Laws 1905, Chapter 65, Section 3, as amended) – PRDUCTION OF LICENSE AND PROOF OF LEGAL QUALIFICATION: • The couple shall produce a license, signed and sealed by the County Clerk. Section 11: Section 40-1-15 NMSA 1978 (being Laws 1905, Chapter 65, Section 4, as amended) CERTIFICATION OF MARRIAGE – RECORDING AND INDEXING: • The couple must return the certificate of marriage to the county clerk who issued the license. • The county clerk can issue a corrected certificate of marriage if necessary. Section 12: Section 40-1-17 NMSA 1978 (being Laws 1905, Chapter 65, Section 7): UNIFORM SYSTEM OF RECORDS: • All records are recorded and numbered. These records will be segregated from other records recorded or filed in the county clerk’s office. • All records my included specified questions and answers pertaining to the marriage and certified by the country clerk. Section 13: Section 40-1-18, NMSA (being Laws 1961, Chapter 99, Section 1): FORM OF APPLICATION, LICENSE AND CERTIFICATE: • The department shall prescribe and provide forms for the marriage certificate required by Section 40-1-25 NMSA 1978. • The forms shall include a space for the signatures of the parties to the marriage, the person solemnizing the marriage and the witnesses to the marriage. • The forms shall also include a space for indicating whether the ceremony was conducted by remote communication technology and, if so, the details regarding the technology used, as specified by the state registrar. • The application form, in this section, includes various changes and updates. Section 14: A new Section 40-1-18.1 NMSA 1978: DECLARATION BY DEPLOYED OR ACTIVATED MEMBER OF THE UNIFORM SERVICES: • This section shows the required application. SECTION 15: Section 40-1-19 NMSA 1978 (being Laws 1905, Chapter 65, Section 9, as amended) is amended to read: Offenses – PENALTIES: • Any person who performs a marriage ceremony must certify to the County Clerk that the ceremony is valid. • If any person who performs a marriage ceremony neglect or fails to comply with the provisions of Chapter 40, Article 1, shall be sentenced pursuant to the provision of Section 31-19-1 NMSA 1978. Section 16: Section 40-2-1 NMSA 1978 (being Laws 1907, Chapter 37, Section 1): MUTUAL OBLIGATION OF MARRIED PERSONS: • Married couples should enter into the marriage contract understanding their obligations and show mutual respect, fidelity and support. Section 17: Section 40-2-2 NMSA 1978 (being Laws 1907, Chapter 37, Section 4) CONTRACT RIGHTS OF MARRIED PERSONS: • Either spouse enters into a marriage contract, with respect to property, must understand the rules of common law, 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): POWER OF ATTORNEY – JOINDER OF SPOUSE: • It is not necessary for both spouses to sign a Power of Attorney document Section 19: Section 40-2-8 NMSA 1978 (being Laws 1907, Chapter 37, Section 5, as amended): EXTENT OF MUTUAL ALTERATION OF LEGAL RELATIONS: • This section explains couples are unable to alter their legal relations, except with respect to their property and except that they may agree in writing to separate • The couple must make financial arrangements for minor children. Section 20: Section 40-3-1 NMSA 1978 (being Laws 1907, Chapter 37, Section 21, as amended): PROPERTY RIGHTS: • A married couple are governed by Chapter 4, unless there is a marriage settlement containing stipulations contrary to this Chapter. Section 21: Section 40-3-2 NMSA 1978 (being Laws 1907, Chapter 37, Section 7 as amended) METHODS TO HOLDING PROPERTY: • Parties to a marriage may hold property as joint tenants or community property. Section 22: Section 40-3-3 NMSA 1978 (being Laws 1907, Chapter 37, Section 3, as amended) SEPARATION OF PROPERTY – ADMISSION TO DWELLING BY SPOUSE: • Neither 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): CONTRACTS OF INDEMNITY – NO OBLIGATION OF OMMUNITY PROPERTY UNLESS SIGNED BY BOTH SPOUSES: • It is illegal in the State of New Mexico to allow one spouse to enter into a contract of indemnity. • No community property shall be liable for any indebtedness incurred as a result of a contract of indemnity. Section 24: Section 40-3-8 NMSA 1978 (being Laws 1973, Chapter 320, Section 3): CLASSES OF PROPERTY: • This section details the type of property that is obtained by either spouse before or after the marriage contract. Section 25: Section 40-3-12 NMSA 1978 (being Laws 1973, Chapter 320, Section 7): PRESUMPTION OF COMMUNITY PROPERTY: • Property acquired during marriage is considered Community Property Section 26: Section 40-4-1 NMSA 1978 (being Laws 1973, Chapter 319, Section 1) is amended: DISSOLUTION OF MARRIAGE: • A district court my decree a dissolution of marriage • Marriage is void, voidable or invalid • Couples have been deemed to be incompatible Section 27: Section 40-4-2 MSA 1978 (being Laws 1973, Chapter 319, Section 2) INCOMPATIBILITY: • Both parties show discord or conflict of personalities • The courts should except the pleading of incompatibilities. Section 28: A new section 40-4-2.1 NMSA 1978 is enacted to read: VOID, VOIDABLE AND INVALID MARRIAGES: • A marriage is void if it is incestuous • The marriage is voidable if one party is under the age of 18 • A marriage is invalid if it is polygamous Section 29: Section 40-4-3 NMSA 1978 (being Laws 1901, Chapter 62, Section 23): PROCEEDING DIVISION OF PROPERTY, DISPOSITION OF CHILDRENOR ALIMONY WITHOUT THE DISSOLUTION OF MARRIAGE: • Spouses have separated and no longer live or habitat together. • Either party can initiate court proceedings to separate community property • Request disposition of children or alimony without dissolution the marriage. Section 30: A new section 40-4-5.1 NMSA 1978: DISSOLUTION OF MARRIAGE – VOID, VOIDABLE OR INVALID MARRIAGE: • If the petition is not contested • If the petition is contested, the court will order a hearing • An order is entered to void the marriage, the State shall apply the laws that pertain to community property, child support, and spousal support. • If the couple finds out they are relatives within the prohibited degree based on New Mexico laws. • Relatives declare at the time of marriage one or both were under the age of 18. Section 31: Section 40-4-12 NMSA 1978 (being Laws 1947, Chapter 16, Section 1, as amended): ALLOWANCE FROM SPOUSE’S SEPARATE PROPERTY AS ALIMONY: • The court will determine if either spouse will receive alimony Section 32: Section 40-4-14 NMSA 1978 (being Laws 1947, Chapter 16, Section 3 is amended): ALLOWANCE IN PROPERTY – APPOINTMENT AND REMOVAL OF GUARDIAN: • The court will determine separation or support between spouses • Determination will made if one or both parents will provide education and support of the minor children • The court may appoint a conservator Section 33: Section 40-4-20 NMSA 1978 (being Laws 1901, Chapter 62, Section 31, as amended): FAILURE TO DIVIDE OR DISTRIBUTE PROPERTY ON THE ENTRY OF A DECREE OF DISSOLUTION OF MARRIAGRE OR SEPERATION: • The failure to distribute property can be litigated • If a party dies during the pendency of the action of separation of property the surviving spouse is entitled to property either by a will or otherwise. Section 34: Section 40-10A-310 NMSA 1978 (being Laws 2001, Chapter 1114, Section 310): HEARING AND ORDER: • The court will determine under what conditions either party will have custody of children • This section explains the legality of custody of minor children. Section 35: Section 40-1-16 and 4-1-20 NMSA 1978 (being Laws 1905, Chapter 35, Section 5 and Laws 1909, Chapter 91, Section 1, as amended) are repealed. Section 36: The Effective date of this provision of this act is July 1, 2024.Committee Substitute:
Committee Substitute February 8, 2024, in HJC HJCcs/HB 242: Relating to Domestic Affairs; clarifying the process of Solemnization, Licensures, definitions, allowing for remote technology; requirements for active-duty service persons, forms; enacting the Domestic Partner Rights and Responsibility Act. Providing for dissolution of marriage on grounds of the marriage being void, voidable or invalid, amending certain fees; amending and describing penalties; creating criminal offenses; revisiting terms that describe parties to a marriage; clarifying property rights; amending, repealing and enacting sections of Chapter 40 NMSA 1978. Section 1: [New Material] Definitions • This section offers definitions for the following: Indian Nation, tribe or pueblo • Judicial Officer; Religious ceremony; Religious Officer; Religious society; Solemnize; uniformed services; Witnesses. Section 2: Defines “Marriages Solemnized” – The civil contract of marriage is entered into when solemnized as provided in Chapter 40, Article 1 NMSA 1978. Section 3: Is amended to read: Ceremony by Religious Society or Indian Nation, Tribe or Pueblo. This section speaks to “who” is authorized to certify a marriage and who can perform a ceremony. Section 4: Foreign Marriages Recognized – This section adds, [New] “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: Restrictions on Marriage of Minors – Voidable: It is illegal to authorize a marriage in the State of New Mexico to minors under the age of 18. This section explains how a marriage can be voided. Section 6: Incestuous Marriages – The following marriages are illegal in the State of New Mexico: • Grandparents with grandchildren; parents with their children; siblings, being brother and sister • Cousins within the first degree of consanguinity and aunts and uncles. Section 7: [New Material] Polygamous or Plural Marriages – Invalid – This type of marriage is illegal in the State of New Mexico. Section 8: License Required – County Clerk: • All couples must apply for a license from a country clerk’s office in the State of New Mexico. • All couples shall personally appear at the office of the county clerk to apply for a marriage license. • All couples must provide identification with a photo id • Members of the service can apply without a personal appearance before the county clerk. The other party must appear in the office of the county clerk. Deployment documents are required. • One party must be a resident of the State of New Mexico Section 9: Fees – Disposition: The county clerk will receive fees in the amount of $40.00 for the following: • Licensing and recording a marriage license and marriage certificate • Recording a declaration; issuing a certificate for a marriage Section 10: Production of License and Proof of Legal Qualifications: Strike [Prior to a ceremony]. Section 11: Certification of Marriage – Recording and Indexing: • [New Material]: In a separate physical or electronic book kept for that purpose. The failure fto 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. Section 12: Uniform System of Records: The County Clerk shall record all marriage licenses. Section 13: Form of Application, License and Certificate; “Application for Marriage License”. • This section shows the amended application required for a marriage license. Section 14: [New Material]: Declaration by Deployed or Activated Member of the Uniformed Services: • This section shows the required document for those individuals in service to our country. Section 15: Offenses & Penalties: • For failure to perform the county clerk’s responsibilities and duties pursuant to Chapter 4, Article 1 NMSA 1978. • A person performing the marriage ceremony or certifies a marriage to the county clerk, who neglects or fails to comply with the provisions of Chapter 4, Article 1 can be convicted and if found guilty of a misdemeanor for each ceremony that was conducted. Section 16: [New Material]: Chapter 40, Article 1A NMSA 1978 may be cited as the “Domestic Partner Rights and Responsibilities Act”. Section 17: [New Material] Definitions: As used in the Domestic Partner Rights and Responsibilities Act: • Certificate of domestic partnership; domestic partner; domestic partnership; record of domestic partnership. Section 18: [New Material]: Protections, Obligations, Benefits and Responsibilities – Exceptions. • This section details what protections are available to spouses, obligations of adults in the marriage contract and consequences of those relationships. Section 19: [New Material]: Jurisdiction: • A District Court shall have jurisdiction over any proceedings relating to a domestic partnership. Section 20: [New Material]: Restrictions on who may enter into a Domestic Partnership: • No one that is married; no one that may not qualify to enter a domestic relationship; Section 21: [New Material]: Certificate of Domestic Partnership Required – County Clerk: • Each couple that enters willing into a domestic relationship shall file the certificate of domestic partnership for recording in the county issuing the certificate • Obtain a certificate of domestic partnership Section 22: [New Material]: Fees – Disposition – • The county clerk shall receive a fee of $40.00. Section 23: [New Material]: Production f Certificate and proof of Legal Qualifications: • A partnership can be certified by any individual 21 years of age or older. • Prior to the ceremony all persons selected to officiate shall require the certificate signed and sealed by the county clerk issuing the certificate. Section 24: [New Material]: Certification of Domestic Partnership – Recording and Indexing. • All persons officiating a ceremony must certify to the county clerk within 90 days from the date of the ceremony. • The county clerk must record in a uniform system of records all forms recorded, filed or appended pursuant to the Domestic Partner Rights and Responsibilities Act. • The county clerk shall issue a certificate of correction or correct or reissue an application. Section 25: [New Material]: Forms – Application for Domestic Partnership: • This section shows the necessary application for Domestic Partnership. Section 26: [New Material]: Offences and Penalties – • Failure to perform the County Clerk’s duties • If a County Clerk fail to perform their specific duties. Section 27: Is amended: Mutual Obligation of Married Persons: • The parties to a marriage contract towards each other obligations of mutual respect, fidelity and support. Section 28: Contract rights of married persons: Is amended to strike (husband and wife); strike (respecting); Section 29: Is amended to read: Power of Attorney – Joinder of Sprouse Unnecessary. • Both parties should execute a “Power of Attorney”. Section 30: Extent of Mutual Alteration of Legal Relations: • The parties to a marriage cannot be any contract with each other alter their legal relations, except with respect to their property and except that they may agree in writing to an immediate separation. Section 31: Property Rights: • The Property Rights of a married couple are governed by Chapter 40 NMSA 1978, unless there is a marriage settlement. Section 32: Methods of Holding Property: [New Material]: • The parties to a marriage may hold property as joint tenants in common or may hold as community property. Section 33: [New Material]: Separation of Property- Admission to Dwelling of Spouse: Neither spouse has interest in the property of the other, but neither can be excluded from the other’s dwelling. Section 34: Contracts of Indemnity – No obligation of community property unless signed by both Parties: • This section explains the obligation of community property of the spouses. Section 35: Classes of Property: • This section defines classes of property and the rights of property owners. Section 36: Presumption of Community Property: • A property acquired during marriage by either spouse, or both, is presumed to be community property. • This section strikes language in section (B); Section (C). Section 37: Dissolution of Marriage: • On a request for dissolution of a marriage, a district court may decree a dissolution of marriage on the following grounds: Incompatibility between the parties to the marriage. This section strikes (b); (c); (d); • [new material] the marriage is void, voidable or invalid. Section 38: Incompatibility: • Incompatibility must be proven between the two married spouses, and if found to be valid, a court shall issue a decree of incompatibility. Section 39: [New Material]: Void, Voidable and Invalid Marriages: • This section defines scenarios that would qualify as void, voidable and invalid marriages. Section 40: Is amended to read: Proceeding for division of property, disposition of children or alimony without the dissolution of marriage: • Division of property can occur when spouses no long live together. • Proceeding in district court can occur for division of property and determine the welfare of children or alimony without asking for or obtaining dissolution of marriage. Section 41: [New Material]: Dissolution of Marriage – Void – Voidable – or Invalid Marriages: This section explains what scenarios that qualify to void a marriage and what criteria would consider the marriage voidable or invalid. • When a court determines the request for dissolution of marriage is valid, the court shall send a copy of the decree to both parties. Section 42: Allowance from Spouse’s separate property as alimony: • In a decree of separation, 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 effect of vesting the title of the property. Section 43: Is amended to read: Allowance of Property – Appointment and Removal of Guardian: • The court will make a determination of property and appoint a qualified conservator. Section 44: Failure to divide or distribute property on the entry of a decree of dissolution of marriage or separation: • This section explains the consequences of failure to distribute property. Section 45: Hearing and Order: • This section references child-custody Section 46: Repeal – Section 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 appealed. Chapter 47: The effective date of the provisions of this act is July 1, 2024.