Complete vs Partial Divorce Agreements in Arizona 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 was 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:
(1) Elmer and Mary would live separately;
(2) Mary released Elmer from the $36,000 due in 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.
Other Articles About Community Property in Arizona
- Community Lien on Sole and Separate Property in Arizona
- Community Lien in Arizona
- Community Liens Separate Property in Arizona
- Community Property and Personal Guaranty in Arizona
- Determining Community Versus Sole Property in Arizona
- The difference Between Community and Separate Property in Arizona
- Disclaimer Deed in a Divorce in Arizona
- Divide Retirement Accounts in an Arizona Divorce
- Dividing Property Not Included in Divorce Decree in Arizona
- Division of Debt in an Arizona Divorce
- Do Rules Regarding Property Apply to Debts in an Arizona Divorce
- Enforce Division of Property and Debt in an Arizona Divorce
- Enforcing a Property Settlement Agreement in Arizona
- Filing a Lis Pendens in a Divorce in Arizona
- How is Property Divided in a Divorce in Arizona
- How to Divide Property in Arizona When a Spouse is Hiding Assets
- Is All Property Community Property in Arizona
- Is Arizona a 50 50 State in a Divorce
- Is Separate Property Divided in Arizona Divorce
- Marital Property Laws in Arizona
- Military Retirement Pay and Divorce in Arizona
- Pensions and Divorce in Arizona
- Separate Property Used to Purchase a Home During Marriage in Arizona
- Sole and Separate Property Divorce Arizona
- Is a Spouse Liable for Credit Card Debt in Arizona
- Stock Options Divided in an Arizona Divorce Case
- Stock Options in an Arizona Divorce
- Unequal Division of Property in Arizona Divorce
- Unfair Separation Agreement in Arizona
- Valuation and Distribution Options For Pensions in an Arizona Divorce
- What is Community Property in Arizona
- What is Separate Property in Arizona
Chris Hildebrand wrote this article to ensure everyone has access to information about family law in Arizona. Chris is a divorce and family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a divorce should all be guided by the principles of honesty, integrity, and, quite frankly, actually caring about what his clients are going through in a divorce or family law case. In short, his practice is defined by the success of his clients. He also manages all of the other attorneys at his firm to make sure the outcomes in their clients’ cases are successful as well.