When drafting Divorce Decrees and Marital Property Settlement Agreements, it is important to identify all property and it’s characteristics as community, joint or separate.
What happens if the parties fail to do so? This most typically would arise where the parties had an omitted account or investment. Or the parties are entitled to a refund that is forgotten until some point down the road. Occasionally an account is not mentioned and each party may possess a different believe about what is to happen with that account.
This could be where the parties drafted the documents themselves, but there are also situations where the parties forgot to advise their counsel of the existence of an asset. Or even that the Court forgot to list an asset in the ruling.
If a divorce decree fails to mention an asset, there is an Arizona statute that provides that community, joint tenancy and other property held in common for which no provision is made in the decree shall be from the date of the decree held by the parties as tenants in common, each possessed of an undivided one-half interest.
One consideration is whether it is appropriate to modify the Decree. Of course, this would depend on the situation. Someone would certainly want to explore that option if they believed that they were to receive the entire property. In other cases, particularly where the parties can later agree, all that may be necessary is a property transfer or exchange of funds.
Thus, while the Courts encourage finality of judgment with the entry of the Divorce
, in order to prevent endless litigation, this is not always possible. At least we have some safeguard within our statutory framework.
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