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Difference Between a Complete and Partial Divorce Agreement

Posted on : June 23, 2016, By:  Christopher Hildebrand
Complete Property Settlement Issues in an Arizona Divorce

Complete vs Partial Divorce Agreements in Arizona

Property Settlement Agreements: Estate of Messer

Sometimes spouses reach a complete property settlement disposing of all community property they acquired during a marriage. Arizona law provides that if they sign this kind of agreement, they waive the right to claim property interests when the other dies. This means that the dead person’s ex-spouse cannot claim an allowance in lieu of a homestead allowance or an exempt property allowance from his estate. In the case of Matter of Estate of Messer, 576 P.2d 150 (Ariz. Ct. App. 1978), the Arizona Court of Appeals discussed whether an amended judgment for separate maintenance was a complete property settlement that terminated the rights of a surviving spouse.

Elmer Jesse and Mary Messer were married for almost 33 years. They had nine children when the couple separated in 1965. Some were still minors when Elmer died in 1975. He left his entire estate – worth some $13,400.00 — to one June B. Miner. Mary asked the probate court for her statutory allowances for herself and the four children who were still minors. Instead, the court awarded Mary a $4,000.00 lump sum payment that was to cover all support claims, including claims related to the children.  Mary appealed the trial court’s ruling.

The Amended Judgment – Facts and Potential Consequences

When Elmer and Mary separated in 1964, the family court ordered Elmer to pay $475 a month for support for his wife and the minor children. By 1975, when Elmer filed for dissolution, he was $36,000.00 behind in support payments. He and Mary agreed to amend the 1964 judgment for support, and it is the legal consequences of this amended judgment that were at issue in the appeal.

June Miner (the woman to whom Elmer left his estate) argued that the amended judgment was a complete property settlement under Arizona law. If it were ruled a complete property settlement, Mary and the minor children could not collect an allowance in lieu of a homestead allowance or exempt property allowance from the estate.

The Terms of the Amended Judgement

The amended judgment contained five major provisions:

Arizona Community Property Law(1) Elmer and Mary would live separately;

(2) Mary released Elmer from the $36,000 due in past support;

(3) Mary was deeded the family home, household furnishings, and automobiles as her sole and separate property;

(4) Mary would receive custody of the minor children;

(5) Elmer would pay $110.00 a month as child support.

The Amended Judgment Was Not a Complete Property Settlement

The Court of Appeals stated that if the amended judgment distributed all of Elmer and Mary’s community property, it would be a complete property settlement under the law. In that case, Mary could not claim anything more from Elmer’s estate. Once a complete property settlement is reached, Arizona law presumes that the spouses waive the right to an allowance in lieu of a homestead allowance, exempt property allowance and family allowance.

However, the Court of Appeals noted that the judgment did not contain any language stating that it was intended to be a property settlement. It also noted that the judgment did not divide or even mention five life insurance policies purchased during the marriage to Mary. These were community assets.

Evidence also showed that Elmer bought a truck and a mobile home during his separation from Mary. If that property was purchased with Elmer’s earnings before the 1975 judgment, it too was community property. Property acquired with a spouse’s earnings during a period of legal separation is community property.

Given these circumstances, it was clearly an error for the trial court to decide that the amended judgment was a complete property settlement. The Court ruled that Mary is entitled to an allowance in lieu of homestead, exempt property allowance, and family allowance as the surviving spouse of Elmer.

The Court of Appeals sent the matter back to the trial court to grant the allowance in lieu of homestead and the exempt property allowance to Mary, and to dispose of any remaining part of the estate as either family allowance or under the terms of Elmer’s will.


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