A. If a spouse disappears and his location is unknown to the other spouse, the other spouse may, not less than thirty days after such disappearance, file a petition setting forth the facts which make it desirable for the petitioning spouse to engage in a transaction for which joinder of both spouses is required by Section 40-3-13 NMSA 1978 or to manage, control, dispose of or encumber community personal property which the disappearing spouse alone has sole authority to manage, control, dispose of or encumber under Section 40-3-14 NMSA 1978.
B. The petition shall be filed in a district court of any county in which real property described in the petition is located or, if only community personal property is involved, in the district court of the county where the disappearing spouse resided.
C. The district court shall appoint a guardian ad litem for the spouse who has disappeared and shall allow a reasonable fee for his services.
D. A notice, stating that the petition has been filed and specifying the date of the hearing, accompanied by a copy of the petition, shall be issued and served on the guardian ad litem and shall be published once each week for four successive weeks in a newspaper of general circulation in the county in which the proceeding is pending. The last such publication shall be made at least twenty days before the hearing.
E. After the hearing, and upon determination of the fact of disappearance by one spouse, the district court may allow the petitioning spouse alone to engage in the transaction for which joinder of both spouses is required by Section 40-3-13 NMSA 1978 or to manage, control, dispose of or encumber community personal property which the disappearing spouse alone has authority to manage, control, dispose of or encumber under Section 40-3-14 NMSA 1978.
F. Any transfer, conveyance, mortgage or lease authorized by the district court pursuant to Subsection E of this section shall be confirmed by order of the district court, and that order of confirmation may be recorded in the office of the county clerk of the county where any real property affected thereby is situated.
History: 1953 Comp., § 57-4A-10, enacted by Laws 1973, ch. 320, § 12.
ANNOTATIONSCross references. — For provision concerning disposition of real property without joinder where spouse is prisoner of war/person missing-in-action, see 40-3-5 NMSA 1978.
Section provides a statutory procedure allowing married individuals to sell marital property when their spouses disappear. — Where defendant was convicted on federal drug charges, and where the district court imposed a fine of approximately $13,000, reasoning that defendant could pay this amount by selling a house which she co-owned with her estranged husband, the district did not clearly err in finding that defendant could sell the house, because this section provides a statutory procedure allowing married individuals to sell marital property when their spouses disappear. Moreover, the district court's finding that defendant could obtain a loan by providing her unencumbered house as collateral was supported by the record, the district court complied with the statute and guidelines by considering hardship in determining whether to impose a fine, and the district court did not rely on clearly erroneous facts in finding that defendant's family had known about her drug activity and that defendant's house was connected to her drug activity. United States v. Basurto, 834 F.3d 1109 (10th Cir. 2016).
Law reviews. — For article, "The Community Property Act of 1973: A Commentary and Quasi-Legislative History," see 5 N.M.L. Rev. 1 (1974).