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What Happens To Debts Not Included in a Divorce Decree

Posted on : August 9, 2016, By:  Christopher Hildebrand
What Happens to Debt Not Included in a Divorce Decree

What Happens to Debts Not Included in a Divorce Decree

In Arizona, the divorce judge usually divides community property and community debt between spouses in a dissolution decree. However, sometimes the court omits an asset or a debt. In Ellsworth v. Ellsworth 423 P.2d 364 (1967), the Arizona Court of Appeals considered how a community debt should be divided.

The debt was discovered after the divorce.

Facts of the Case

Mrs. Ellsworth and Mr. Ellsworth were divorced in 1964. The court awarded wife, as her share of community property, a car and a house. What Happens to Debt not Included in a Divorce Decree ArizonaIt ordered husband to pay off the loan on the house. The court did not mention any other community debt in the decree.

After the divorce was final, O.S. Stapley Company, dba Arizona Hardware Company, sued Mr. Ellsworth on two promissory notes and won. Mr. Ellsworth sued his ex wife for half of the amount, claiming that the debt was a community debt. The court agreed and ordered Mrs. Ellsworth to pay half, some $4,675. From this wife appeals.

Court Will Not Consider Purported Letter from Trial Court Judge

Mrs. Ellsworth represented herself in the appeal. She submitted a letter to the court during argument that appeared to be from the divorce judge to the Clerk of Court. The letter directs the Clerk to prepare a minute order and written judgment in the divorce action.

The letter contains the following paragraph: “The remaining property shall become the sole and separate property of the Plaintiff, subject to all outstanding indebtedness, including the balance due on the home residence.”

The Court of Appeals rejected consideration of the letter since it was not submitted to the trial court. Also, wife did not submit the letter properly as part of the record on appeal.
What Happens to Debts Not Included in Divorce Decree
The Court of Appeals said it would not go outside the legal briefs to consider whether a trial court order should be reversed.

No Facts in Dispute

Mrs. Ellsworth argues next that the lower court shouldn’t have granted summary judgment since facts were in dispute. She filed an affidavit in the trial court saying that she had refused to sign the promissory notes that husband made. She said that she never agreed to the obligations.

The Court held that even if a wife does not agree to a debt, it can still be community debt. If the husband incurs the debt while trying to benefit the community, it is community debt.

“Equitable Defenses” Rejected

Wife argues that she had “equitable” defenses which would reduce how much she should have to contribute. She claimed that her ex husband received more community property than she did. Therefore, it would be a “hardship and inequality” if she had to pay half of the debt. The Court of Appeals rejected this argument.

The trial court divided the property in the divorce. The appellate court presumed the decree to be fair and equitable. Therefore, wife should be liable for half of the community debt omitted in the divorce decree. The trial court limited her obligation to the extent of the community property she received in the divorce.


Hildeband Law, PC.

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