Tuesday, March 28, 2006

Case Law Development: Res Judicata Does not Bar Separate Civil Action to Divide Property Unaddressed by a Divorce Decree

The Arizona Supreme Court holds that a divorced spouse who claims to be a tenant in common with his or her former spouse may bring a separate civil action to obtain relief when a dissolution decree fails to mention or does not dispose of real property.

In this case, husband sued his former wife to recover his share of community property that he alleged she fraudulently induced him to transfer to her separate property trust. The trial court dismissed Husband's action on the basis that Husband should have brought a motion to reopen the divorce judgment. The court of appeals affirmed.  However, the Arizona Supreme Court determined that the state's statutes dictated otherwise.  Arizona statutes provide that "the 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 ..."  The court found that this language provided the legislative intent that claim preculsion principles should not bar a separate civil action, noting that California and Texas law come to the same conclusion.

Dressler v. Morrison, 2006 Ariz. LEXIS 42 (March 23, 2006)bgf

http://lawprofessors.typepad.com/family_law/2006/03/case_law_develo_39.html

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