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TO: Tamara Couture

FROM: Brooke Acosta


DATE: September 26, 2014
RE: Clark and the opposed bifurcation of divorce
QUESTION PRESENTED:
Can a divorce be bifurcated in New Mexico, and if so, how?
BRIEF ANSWER:
Yes. It is at the courts discretion where bifurcation is done in furtherance of convenience, or to
avoid prejudice, or where separate trials would be conducive to expedition and economy.
FACTS:
We would like to bifurcate the divorce and property division of the Clark case, and opposing
party does not concur.
DISCUSSION:
In this case the parties have been subjected to a continuous legal battle over the
community assets. NMSA 40-4-3 allows for determinations with regards to the community
assets and/or children without requesting a determination of dissolution of marriage. NMSA
40-4-20 conversely allows for a determination of dissolution without a final distribution of the
community property. This statute is limited by the four-year statute of limitations. The public
policy reason for the statute of limitation is to avoid manifest injustice. The Court in Plaatje v.
Plaatje determined that the legislature did not intend to allow for spouses to be able to seek
community property benefits from previous spouses indefinitely. 95 N.M. 789 (1981). However,
the Court also determined that there are two exceptions to the statute of limitations: real estate,
and retirement benefits.
NMSA 40-4-20 does not address what elements are necessary to obtain permission from
the courts for bifurcating the dissolution from the asset and/or child custody matters. New
Mexico Rules of Civil Procedure on consolidation and separate trials sheds light on the reasons
why bifurcating the dissolution would be appropriate. NM R DIST CT RCP Rule 1-042. Rule 1042(B) states that bifurcation is appropriate for the following reasons: 1) in furtherance of
convenience, 2) to avoid prejudice, or 3) when separate trials will be conducive to expedition
and economy. Id. New Mexico courts will generally bifurcate cases when there is recognition
that judicial resources will be preserved if specific issues are tried separately. State v. Esparza,
2003, 133 N.M. 722, 70 P.2d 762, Cert Denied 133 N.M. 771, 70 P.3d 761. Severance is
discretionary with the trial judge. Speer v. Cimoza, 1982, 97 N.M. 602, 642 P.2d 205, Cert.
denied 98 N.M. 50, 644 P.2d 1039.

Bifurcation is a matter left to the discretion of the courts. Arguments in favor of bifurcation
center on instances when the distributions of property and child custody are the only things that
are at issue and the marriage is irreparably broken. A policy argument can be made for
bifurcation because the State no longer has an interest in a marriage that is irrevocably broken,
and should rather have an interest in the prompt dissolution. Forcing the dissolution to wait until
all other issues are decided undermines the idea of a prompt dissolution of the irreparable
marriage.
Counterarguments to bifurcation can include such things as the cessation of insurance benefits
for one spouse, and the affect of tax liability for parties that not longer file joint tax returns. If the
dissolution is decided separately from the property divisions, then one spouse may be unable to
share in the medical coverage from their previous spouse. Additionally, if the parties do not file
joint taxes, there is a risk that tax liability may increase disproportionally for one spouse over
another if the property remains undivided. However, it should be noted that this is not always the
case.
CONCLUSION
Bifurcation is appropriate where it serves to preserve judicial economy and expedition of the
issues, where it prevents prejudice, or where it is in furtherance of convenience. Arguments for
bifurcation are that the state no longer has an interest in the marriage, and thus to not grant a
prompt dissolution would be to undermine the state interest in the dissolution of the marriage.
Arguments against bifurcation are relevant where one spouse is dependant on the other for
medical insurance coverage or where the resulting tax liability disproportionally affects one
spouse more than another.