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Wednesday, May 3, 2006
Bigamy Doesn't Forfeit Assets
By Leslie Linthicum
Journal Staff Writer
Let's say you get married. Then let's say you get married again and you do it before you get divorced.
You're a bigamist.
Is there some penalty for such bad behavior in divorce court, or will you each still get your full half of the community property?
Amidst all the tedium of insurance cases and arguments over the finer points of jury instructions, the New Mexico Court of Appeals got to tackle these juicy questions recently when a divorce case involving a bigamist wife she was married to two men at the same time came up on appeal.
And the court's message brings some new math to the marriage contract: two-time your spouse with another spouse, a panel of judges said, and it doesn't mean you automatically give up your half of the assets from your first marriage.
The appellate court said other factors might influence a judge's decision to withhold some share of community property but that "the mere fact of bigamy is insufficient."
The case came out of Chaves County and involves a divorcing Roswell couple, Jose and Rachael Medina.
Jose and Rachael married on May 14, 1993, and dispute when they separated. Jose Medina says it was in 1997, while Rachael Medina says it was in 2003.
In 1999, Rachael Medina applied for a marriage license in Colorado to wed Paul Orozco. She used a fictitious name, Social Security number and birth date. She stated on the application that she was a widow.
She and Paul Orozco married and he died in 2002. Jose Medina filed for divorce from his wife in 2003.
The divorcing Medinas also disputed when Jose found out about his wife's second marriage. Jose Medina said during the trial that he only suspected his wife had married again. Rachael Medina said her first husband knew about it within two weeks.
The couple agreed to split their assets 50-50, according to Rachael Medina's lawyer, Ramon Garcia. But Jose Medina didn't want his ex-wife to get a full share of his state Department of Transportation pension.
State District Judge Charles Currier came down in the middle. He decided that Rachael Medina's share of the benefits would end at the date of her second marriage and she appealed that ruling.
In a five-page decision, Judge Lynn Pickard discussed the ins and outs of bigamy, noting that in New Mexico bigamy is a criminal offense but there is no civil statute stating that a bigamist marriage is automatically invalid.
Colorado has such a law, Pickard said, which makes the Medina-Orozco marriage invalid. That means the first marriage still stands.
Jose Medina had contended that the bigamist marriage made his marriage to Rachael invalid, thus precluding her from sharing his benefits.
"We agree that under some circumstances, a bigamous spouse should be precluded from reaping the benefits of his or her first marriage," Pickard wrote. But mere two-timing isn't enough, she said.
If the New Mexico Legislature wants bigamy to automatically strip the offending spouse of community property, Pickard said, lawmakers will have to take that up.
"The most logical rationale for a holding that bigamy automatically deprives a spouse of community property rights would be that the spouse forfeits those rights as a result of his or her misconduct," Pickard wrote.
But, she said, injecting moral arguments into the division of property would go against New Mexico's no-fault divorce law.
That leaves a trial court to look at a range of actions and behaviors on the part of a bigamist spouse that might be grounds for losing community property. They would be things, Pickard said, that "shock the conscience of the court."
New Mexico courts already have held that infidelity and criminal acts, such as domestic violence, are not sufficient to kill community property rights.
The appellate court sent the Medina case back to Judge Currier. He was instructed to explore issues that might affect his diverting from the general rule that divorcing parties share equally in their community property. Questions could include whether they continued to live together after the second marriage, whether they filed joint tax returns and at what point Jose Medina learned his wife was a bigamist.
If Medina was aware of the second and simultaneous marriage before he filed for divorce, the appellate court suggests he could have solved the problem of his wife-sharing in community property in the years following that marriage by simply divorcing her immediately.
"If a spouse is aware of the bigamous marriage and does nothing," Pickard wrote, "then it would seem inequitable to allow that spouse to retain community assets to which the bigamous spouse would ordinarily be entitled."