2023 New Mexico Statutes › Chapter 40 - Domestic Affairs › Article 4 - Dissolution of Marriage › Section 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, 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spousal support, child support or determination of paternity pursuant to the provisions of Chapter 40, Article 4 or 11 [repealed] NMSA 1978, if a party to the action dies during the pendency of the action, but prior to the entry of a decree granting dissolution of marriage, separation,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of the marriage support as if the decedent had survived, pursuant to the provisions of Chapter 40, Article 4 or 11 [repealed] NMSA 1978.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.
History:
Laws 1901, ch. 62, § 31; Code 1915, § 2781; C.S. 1929, § 68-509; 1941 Comp., § 25-709; 1953 Comp., § 22-7-22; Laws 1973, ch. 319, § 13; 1993, ch. 90, § 1.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Chapter 40, Article 11 NMSA 1978, the Uniform Parentage Act, was repealed by Laws 2009, ch. 215, § 19. For present comparable provisions,
see
Chapter 40, Article 11A, the New Mexico Uniform Parentage Act (40-11A-101 through 40-11A-903 NMSA 1978).
Cross references.
— For proceeding for division of property,
see
40-4-3 NMSA 1978.
For provisions relating to the establishment of a parent-child relationship for purposes of intestate succession,
see
45-2-115 through 45-2-122 NMSA 1978 of the Uniform Probate Code.
The 1993 amendment,
effective July 1, 1993, rewrote the catchline which read "Failure to divide property on dissolution of marriage"; designated the formerly undesignated provisions as Subsection A; in Subsection A, substituted "divide or distribute property on the entry of a decree of dissolution of marriage or of separation" for "divide the property on the dissolution of marriage" and added "or separation" at the end; added Subsection B; and made minor stylistic changes.
Voluntary dismissal of legal separation action following the death of one party.
— Section 40-4-20 NMSA 1978 does not preclude voluntary dismissal of a legal separation action as a means of concluding the proceedings after the death of one of the parties.
Trinosky v. Johnstone
, 2011-NMCA-045, 149 N.M. 605, 252 P.3d 829.
Where petitioner filed a petition for legal separation, division of property and spousal support; while the action was pending and before entry of a final decree, respondent died; and petitioner filed a motion to voluntarily dismiss the action, 40-4-20 NMSA 1978 did not preclude the district court from granting the motion to dismiss the action.
Trinosky v. Johnstone
, 2011-NMCA-045, 149 N.M. 605, 252 P.3d 829.
The four-year statute of limitations of 37-1-4 NMSA 1978 does not apply
to a division of undivided retirement benefits.
Gilmore v. Gilmore
, 2010-NMCA-013, 147 N.M. 625, 227 P.3d 115.
Subject matter jurisdiction.
— Where defendant filed a divorce action against plaintiff in New Mexico; plaintiff obtained a default divorce in California; defendant's New Mexico divorce action was dismissed when the California divorce was granted; the California court initially issued a qualified domestic relations order awarding plaintiff a portion of defendant's retirement benefits; the California court subsequently set aside the qualified domestic relations order for lack of personal jurisdiction; and plaintiff then filed an action in New Mexico for division of the retirement benefits, the retirement benefits were an undivided asset, plaintiff's New Mexico action was an independent action, and the district court had subject matter jurisdiction to divide the retirement benefits.
Gilmore v. Gilmore
, 2010-NMCA-013, 147 N.M. 625, 227 P.3d 115.
Division of retirement benefits.
— Where plaintiff filed an action to divide defendant's monthly retirement benefits; defendant offered to buy out plaintiff's share of the retirement benefits through a lump-sum payment; and defendant did not have the ability to pay a lump sum at the time of the hearing on plaintiff's petition, the district court did not abuse its discretion by awarding plaintiff a share of the retirement benefits under a pay-as-it-comes-in method.
Gilmore v. Gilmore
, 2010-NMCA-013, 147 N.M. 625, 227 P.3d 115.
Laches, equitable estoppel and waiver by acquiescence.
— Where a California court granted plaintiff a default divorce from defendant in 1994; defendant retired and began receiving monthly retirement benefits in 2005; the California court issued a qualified domestic relations order awarding plaintiff a portion of defendant's retirement benefits in 2006; the California court set aside the qualified domestic relations order in 2006 for lack of personal jurisdiction; plaintiff filed an action in New Mexico in 2007 for a division of the retirement benefits; defendant testified that plaintiff told defendant that plaintiff did not want any money from defendant's retirement, that defendant relied on plaintiff's statement and paid defendant's subsequent wife a lump sum payment for her share of defendant's retirement, and that defendant was forced to select a retirement option of maximum monthly payments because plaintiff failed to perfect plaintiff's claim; and plaintiff testified that plaintiff asserted plaintiff's rights as soon as defendant retired, plaintiff rejected defendant's settlement offers; and plaintiff never waived plaintiff's right to defendant's retirement benefits, there was sufficient evidence to support the district court's denial of defendant's defenses of laches, equitable estoppel and waiver by acquiescence.
Gilmore v. Gilmore
, 2010-NMCA-013, 147 N.M. 625, 227 P.3d 115.
Method for division of retirement benefits.
— Absent an agreement regarding calculation of benefits, there is no set rule for determining every case involving the division of retirement benefits.
Gilmore v. Gilmore
, 2010-NMCA-013, 147 N.M. 625, 227 P.3d 115.
Use of time-rule method.
— Where plaintiff and defendant were married for nine years during which time plaintiff was a municipal police officer; plaintiff and defendant were divorced in 1994; the divorce decree did not provide for the division of defendant's retirement benefits; after the divorce, defendant was employed as an undersheriff and later as the director of a county detention center; defendant's salaries as undersheriff and as director of the county detention center were significantly more than defendant's salary as a municipal police officer; defendant retired and began receiving monthly retirement benefits in 2005; and plaintiff filed an action in 2006 for division of the retirement benefits, the district court erred in assuming that the public employees retirement association required the use of the time-rule method to calculate plaintiff's share of defendant's retirement benefits.
Gilmore v. Gilmore
, 2010-NMCA-013, 147 N.M. 625, 227 P.3d 115.
Procedure when death occurs during dissolution.
— A decedent's will and trust are not statutorily revoked by the entry of a 40-4-20B NMSA 1978 marital property judgment. Before the domestic relations proceedings can be continued, a personal representative who is not disqualified by a conflict of interest must be appointed to represent the decedent's estate through the conclusion of those proceedings. After the domestic relations court concludes the 40-4-20B NMSA 1978 proceedings, the decedent's estate can be distributed according to the decedent's estate plan and governing probate statutes.
Oldham v. Oldham
, 2011-NMSC-007, 149 N.M. 215, 247 P.3d 736,
rev'g in part
and
aff'g in part
, 2009-NMCA-126, 147 N.M. 329, 222 P.3d 701.
Appointment of decedent's spouse as personal representative of decedent's estate.
— Where decedent executed a will designating decedent's spouse as the personal representative and beneficiary of decedent's estate; decedent subsequently filed a petition for divorce; and decedent died while the divorce proceeding was pending, the court erred in appointing decedent's spouse as personal representative of decedent's estate because the appointment of decedent's spouse as personal representative to represent decedent's estate against the spouse in the pending divorce proceeding created an inherent conflict of interest.
Oldham v. Oldham
, 2009-NMCA-126, 147 N.M. 329, 222 P.3d 701,
rev'd in part
and
aff'd in part by
Oldham v. Oldham
, 2011-NMSC-007, 149 N.M. 215, 247 P.3d 736.
Death of a spouse during a divorce proceeding.
— If one spouse dies during the pendency of a divorce proceeding, marital property and debt covered by this section are divided and distributed according to New Mexico domestic relations law, debt incurred after the death of the decedent spouse is separate debt to be dealt with through probate, and the surviving spouse is not the surviving spouse for purposes of probate.
Karpien v. Karpien
, 2009-NMCA-043, 146 N.M. 188, 207 P.3d 1165.
Spousal support and attorney fees awarded after death of spouse.
— In a divorce proceeding continued after the death of a spouse pursuant to 40-4-20 NMSA 1978 in which the court awards lump-sum spousal support and attorney fees, the final judgment is not a claim against the estate of the deceased spouse for purposes of the [Uniform] Probate Code's (Chapter 45 NMSA 1978) creditor's claims provisions of 45-3-805 NMSA 1978.
Estate of Nauert v. Morgan-Nauret
, 2012-NMCA-037, 274 P.3d 799.
Where the deceased spouse who filed for divorce in March 2006; died while the divorce action was pending; in September 2007, the probate court appointed a personal representative of the estate; in November 2007, the divorce court awarded the surviving spouse monthly spousal support from September 2007 and attorney fees and ordered the estate to pay the awards immediately; and the personal representative claimed that the awards were class six claims under 45-3-805 NMSA 1978, the awards were not claims under the [Uniform] Probate Code (Chapter 45 NMSA 1978) to which the creditors' claims provisions of Section 45-3-805 NMSA 1978 applied.
Estate of Nauert v. Morgan-Nauret
, 2012-NMCA-037, 274 P.3d 799.
Spousal support and attorney fees awarded after death of spouse did not violate Federal Insolvency Act.
— Where a divorce proceeding was continued after the death of a spouse and the divorce court ordered the deceased spouse's estate to immediately pay a lump-sum amount for spousal support and attorney fees to the surviving spouse, the award did not violate the Federal Insolvency Act, 31 U.S.C. § 3713(a)(1)(B) which requires claims of the United States government to be paid first when the estate of the deceased debtor is not enough to pay all debts of the debtor, because the divorce court awards were not claims against the estate of the deceased spouse and the act did not apply.
Estate of Nauert v. Morgan-Nauret
, 2012-NMCA-037, 274 P.3d 799.
Property divided pursuant to this section
must be divided in an independent action.
Lewis v. Lewis
, 1987-NMCA-073, 106 N.M. 105, 739 P.2d 974.
Divorce decree not bar to set aside action where property rights not litigated.
— Where neither the property rights of the parties nor the validity of the conveyance of the property was litigated in the divorce proceeding, the divorce decree is not a bar to the wife's independent action to set aside her conveyance of community property.
Trujillo v. Padilla
, 1968-NMSC-090, 79 N.M. 245, 442 P.2d 203.
If property rights are not considered or disposed of in divorce
action, a suit seeking division and distribution of the property may be subsequently prosecuted.
Zarges v. Zarges
, 1968-NMSC-151, 79 N.M. 494, 445 P.2d 97.
Petition not barred by res judicata.
— A petition to divide a previously undivided asset involves a new cause of action not barred by res judicata.
Pacheco v. Quintana
, 1986-NMCA-007, 105 N.M. 139, 730 P.2d 1, cert. quashed, 105 N.M. 94, 728 P.2d 845.
Four-year statute of limitations of 37-1-4 NMSA 1978
applies to suits to divide personal property brought under this section.
Plaatje v. Plaatje
, 1981-NMSC-040, 95 N.M. 789, 626 P.2d 1286.
Property no longer community property after divorce.
— After divorce the parties are no longer husband and wife, and the property is no longer community property and former 57-4-3, 1953 Comp., relating to management and conveyance, has no application.
Jones v. Tate
, 1961-NMSC-039, 68 N.M. 258, 360 P.2d 920.
Upon divorce of parties all community property not divided
between them does not remain community property but becomes property which they hold as tenants in common.
Jones v. Tate
, 1961-NMSC-039, 68 N.M. 258, 360 P.2d 920; Martinez v. Martinez, 2004-NMCA-007, 135 N.M. 11, 83 P.3d 298.
Statute of limitations does not apply to action for accounting and partition of real property.
— There is nothing about the bare holding of title that should equate to the accrual of a cause of action that triggers a time limitation on the right to seek partition; thus, the trial court must analyze a post-divorce action to partition real property in the same fashion as any partition action by a tenant in common.
Martinez v. Martinez
, 2004-NMCA-007, 135 N.M. 11, 83 P.3d 298.
If rights were community property prior to divorce,
such rights, after divorce, are owned as tenants in common.
Hickson v. Herrmann
, 1967-NMSC-083, 77 N.M. 683, 427 P.2d 36.
Existing present interest of wife continues even after divorce.
— This section recognizes an existing present interest of the wife in the community property during the existence of the matrimonial status, which continues even after divorce, where the property is not divided in the decree in the divorce case.
In re Miller's Estate
, 1940-NMSC-021, 44 N.M. 214, 100 P.2d 908; Beals v. Ares, 1919-NMSC-067, 25 N.M. 459, 185 P. 780.
Wife's interest in community property not affected by adultery.
Beals v. Ares
, 1919-NMSC-067, 25 N.M. 459, 185 P. 780.
Spouses' equal interest as tenants-in-common in insurance policy.
— Unless otherwise ordered by the court in the dissolution of marriage and the property settlement, the divorced spouses have an equal interest as tenants in common in a term life insurance policy until such time as the term determined by the last premium paid by community funds comes to an end.
Phillips v. Wellborn
, 1976-NMSC-038, 89 N.M. 340, 552 P.2d 471.
Where right to policy proceeds obtained during marriage.
— Where there is an insured third person (the child) and a spouse (the defendant) as beneficiary and the proceeds were not paid during marriage, but the right to the proceeds was obtained during marriage, this right was not changed and was not divided upon the divorce.
Hickson v. Herrmann
, 1967-NMSC-083, 77 N.M. 683, 427 P.2d 36.
Since husband owned right to receive proceeds of policy as community property
of the parties, this right, not having been disposed of by divorce, became the right of the parties as tenants in common.
Hickson v. Herrmann
, 1967-NMSC-083, 77 N.M. 683, 427 P.2d 36.
Interest in pension plan need not be vested for division.
— A spouse's entitlement to half of the community interest in a pension plan earned during coverture does not rest upon whether the employee's interest was vested at the time of divorce, but whether the worker's rights in the pension constitute a property interest or right obtained with community funds or labor.
Berry v. Meadows
, 1986-NMCA-002, 103 N.M. 761, 713 P.2d 1017.
Post-decree retirement benefit plan increases.
— The community pension and profit-sharing plans maintained by the husband became a tenancy in common interest with the entry of the partial decree of divorce dissolving the parties' marriage, and since when two parties hold personal or real property as tenants in common, they each have a separate and distinct interest in the property that cannot legally be transferred or extinguished by the other co-tenant, and since the retirement benefit plan increases from the date of the partial decree were the result of passive earnings and appreciation, any increases should be shared equally at the time of the judgment dividing the parties' property, and therefore according to the parties' percentage of ownership as of the date of the latter judgment.
Lewis v. Lewis
, 1987-NMCA-073, 106 N.M. 105, 739 P.2d 974.
Future tax consequences of deferred pension payments
are too speculative and should be disregarded in calculating the present value of the pensions.
Lewis v. Lewis
, 1987-NMCA-073, 106 N.M. 105, 739 P.2d 974.
Division of military benefits governed by jurisdiction granting alimony.
— Trial court was without authority to award respondent part of petitioner's military benefits, whether as a modification of the original Colorado divorce and alimony decree or as a separate action under this section, where such benefits were not recognized under Colorado law as marital assets.
Reyes v. Reyes
, 1987-NMCA-007, 105 N.M. 383, 733 P.2d 14, cert. denied
sub nom. Reyes v. State
, 105 N.M. 358, 732 P.2d 1381 (1987).
Post-decree claim for military retirement benefits.
— Where there was no substantial evidence to support the trial court's finding that the parties orally agreed that the husband should be awarded the entire community interest in his military retirement benefits, the wife was not precluded from asserting her post-decree claim for this undistributed asset.
Berry v. Meadows
, 1986-NMCA-002, 103 N.M. 761, 713 P.2d 1017.
Military retirement benefits are a form of employee compensation
and are community property if the period of employment upon which those benefits are based occurred during coverture. Although the right to receive benefits matured prior to divorce, the right to receive each monthly installment accrues when the installment becomes due. Thus the statutory time limitation upon a former spouse's right to sue for a portion of each installment commences to run from the time each installment comes due.
Plaatje v. Plaatje
, 1981-NMSC-040, 95 N.M. 789, 626 P.2d 1286.
Applicability of USFSPA to pre-1981 divorce decrees.
— The provisions of Paragraph 1408(c)(1) of the federal Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408(c)(1), do not entitle a non-military spouse to a share of the military spouse's pension, where the divorce decree was decided prior to June 25, 1981, and where such decree did not treat the pension as marital property or reserve jurisdiction to make such determination at a later date.
Hennessy v. Duryea
, 1998-NMCA-036, 124 N.M. 754, 955 P.2d 683, cert. denied, 124 N.M. 589, 953 P.2d 1087.
Federal preemption.
— The purpose of Paragraph 1408(c)(1) of the federal Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408(c)(1), is to preempt state laws that allow reopening of divorce decrees that were silent as to military retirement pay; to the extent that Subsection A of this section is inconsistent with such purpose, Subsection A of this section is preempted.
Hennessy v. Duryea
, 1998-NMCA-036, 124 N.M. 754, 955 P.2d 683, cert. denied, 124 N.M. 589, 953 P.2d 1087.
Federal preemption regarding military disability retirement benefits.
— United States Supreme Court decision in
Mansell v. Mansell
, 490 U.S. 581, 109 S. Ct. 2023, 104 L. Ed. 2d 675 (1989), holding that states were preempted by federal statute from treating military disability retirement benefits as community property, would not be applied retroactively.
Toupal v. Toupal
, 1990-NMCA-027, 109 N.M. 774, 790 P.2d 1055, cert. denied, 109 N.M. 751, 790 P.2d 1032, and cert. denied, 498 U.S. 982, 111 S. Ct. 513, 112 L. Ed. 2d 525 (1990).
New action to modify property division.
— Even though the court which entered the original divorce decree no longer had jurisdiction under Rule 1-060 NMRA, concerning relief from a judgment or order, to modify property rights portion of the order, a party in the divorce could achieve a modification pursuant to this section.
Mendoza v. Mendoza
, 1985-NMCA-088, 103 N.M. 327, 706 P.2d 869.
Law reviews.
— For article, "Federal Taxation of New Mexico Community Property," see 3 Nat. Resources J. 104 (1963).
For comment on Trujillo v. Padilla, 79 N.M. 245, 442 P.2d 203 (1968), see 9 Nat. Resources J. 101 (1969).
For annual survey of New Mexico law relating to domestic relations, see 13 N.M.L. Rev. 379 (1983).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Trial court's jurisdiction as to alimony or maintenance pending appeal of matrimonial action, 19 A.L.R.2d 703.
Pension or retirement benefits as subject to award or division by court in settlement of property rights between spouses, 94 A.L.R.3d 176.
Divorce and separation: treatment of stock options for purposes of dividing marital property, 46 A.L.R.4th 640.
Valuation of stock options for purposes of divorce court's property distribution, 46 A.L.R.4th 689.
Valuation of goodwill in medical or dental practice for purposes of divorce court's property distribution, 78 A.L.R.4th 853.
Accrued vacation, holiday time, and sick leave as marital or separate property, 78 A.L.R.4th 1107.
Divorce and separation: goodwill in law practice as property subject to distribution on dissolution of marriage, 79 A.L.R.4th 171.
What constitutes order made pursuant to state domestic relations law for purposes of qualified domestic relations order exception to antialienation provision of Employee Retirement Income Security Act of 1974 (29 USCS § 1056(d)), 79 A.L.R.4th 1081.
27B C.J.S. Divorce § 508.