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Setting Aside Divorce Decree to Correct a Mistake in AZ | Hildebrand Law

Posted on : August 4, 2016, By:  Chris Hildebrand
Joint Tenancy Property Treated as Community Property

Setting Aside Divorce Decree to Correct a Mistake

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Under prior Arizona law, spouses could hold property in joint tenancy or as community property. These two types of property were treated differently in a divorce. If one spouse identifies joint tenancy property as community property in a divorce, the other spouse can dispute that characterization. The law after this case was changed to require a court to treat joint tenancy property the same as community property in a divorce.

What happens if the other spouse does not appear and dispute it? In Gardner v. Gardner 596 P. 2d 711 (1979) the Arizona Court of Appeals looked at this issue.

Facts of the Case

Mrs. Gardner filed a petition for divorce from her husband, Mr. Gardner. She claimed that the marital house was community property. She asked the court to award it to her. The husband did not file a reply. The family law court then awarded wife the house.

After the court entered the judgment, the husband filed a motion to modify the decree charging that the couple bought the property in 1969, taking the title in joint tenancy, not as community property.

The court denied the husband’s motion and he appealed.

Learn About Setting Aside a Divorce Decree to Fix a Mistake in Arizona from Our Arizona Licensed Attorney Chris Hildebrand of Hildebrand Law, PC.

Joint Tenancy Property Issue Must Be Raised at Divorce Hearing

Mr. Gardner presented sufficient evidence to establish that the couple held the property in joint tenancy. He argues that the joint tenancy property acquired in 1969 cannot be treated by the court as community property. The Court of Appeals agreed with this position.

However, the Court also noted that the court pleadings said that the property was community property. Mr. Gardner did not answer the pleadings nor raise the issue of joint tenancy. In that case, the lower court could properly treat the property as community property.

Setting Aside a Divorce Decree in Arizona to Correct a Mistake.

Rule 60(c)(1) Motion

In this situation, Mr. Gardner should have filed a Rule 60(c)(1) motion. He would have had to show that the ruling was the result of “mistake, inadvertence, surprise or excusable neglect”. A person making a Rule 60(c) (1) motion must explain why they didn’t bring the mistake to the court’s attention earlier. They must offer a valid excuse for this failure. The husband did not make this showing.

Husband’s Claim of Lack of Jurisdiction

Mr. Gardner argues that the court should have granted his motion under Rule 60(c)(1). He claims that the award was void for lack of jurisdiction. He bases this argument on language in the case of Williams v. Williams, 509 P.2d 237 (1973). That court said that the trial court “lacked jurisdiction” to make an equitable division of joint tenancy property. However, the facts of the case were entirely different.

In Williams, the spouses labeled the property as joint tenancy property during the entire proceeding. It is not applicable here, where the pleadings labeled the property as community property.


The Arizona Court of Appeals affirmed the trial court refused to grant the husband’s motion.

If you need information about setting aside an Arizona divorce decree to correct a mistake, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona divorce attorneys have over 100 years of combined experience successfully representing clients in divorce cases in Arizona.

Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.

Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your Arizona divorce case around today.

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Chris Hildebrand wrote the information on this page about setting aside a divorce decree in Arizona to correct a mistake 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.



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