What can I do about an asset that was not listed in my divorce decree or judgment in California

Assets that were not listed in any divorce decree or judgment in California

Sometime parties in California that have already had a dissolution (divorce) judgment in California  discover an omitted asset many weeks or months later and wonder what their options are.  This blog post discusses the issue of assets or liabilities that were not listed in any divorce decree or judgment in California. These are what is known as omitted assets.

A party can request that the court adjudicate any assets or liabilities that were not mentioned in the judgment of divorce as those assets were not previously adjudicated in the judgment of dissolution of marriage and in most cases were never mentioned in any documents filed with the court or any court orders. The request is filed under the provisions of Family Code section 2556. by the filing of a notice of motion or request for order. 

A request filed under Family Code section 2556 is most often filed in divorce cases but can also be filed in a legal separation or nullity case in California.

If you use this request in the right situations it is very powerful as there are no time limitation specified in the statute although in my personal opinion you should file the motion as soon as possible after discovering the omitted asset or liability is a good idea. I also want to point out that the court will most likely deny any request if you have already filed another motion or request with the court under another code section or legal theory that mentions the omitted asset and the court has denied that request

Family Code § 2556 states that,

“In a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court has continuing jurisdiction to award community estate assets or community estate liabilities to the parties that have not been previously adjudicated by a judgment in the proceeding. A party may file a postjudgment motion or order to show cause in the proceeding in order to obtain adjudication of any community estate asset or liability omitted or not adjudicated by the judgment. In these cases, the court shall equally divide the omitted or unadjudicated community estate asset or liability, unless the court finds upon good cause shown that the interests of justice require an unequal division of the asset or liability.”

Before this code section was enacted into California law the courts allowed a former spouse to file a separate partition action to divide any assets that were omitted from a divorce judgment. 

Any community estate asset or liability that was not mentioned in the judgment should most likely be considered an omitted asset.

Both the California Supreme Court and the California Courts of Appeal have stated that the doctrine of res judicata does not prevent the division of community property assets that were not adjudicated in any prior judgment.

The California Supreme Court has also stated that the entitlement of a spouse to a share of any community property arises at the time that the property is acquired and any property which is not mentioned in the judgment or any of the pleadings is considered unadjudicated by any judgment and is therefore subject to further legal proceedings as the former spouses are considered tenants in common until the asset can be adjudicated.

The moving party should make a sufficient showing that the omitted asset or liability is in fact a community estate asset or liability as the asset was acquired or the liability was incurred during the marriage.  The California Supreme Court has stated that any property acquired by purchase during the marriage is presumed to be community property.

Attorneys or parties in California that would like to view a portion of a sample 11 page motion to adjudicate an omitted asset under Family Code section 2556 containing brief instructions, a memorandum of points and authorities and sample declaration sold by the author can use the link below. 

   Sample Motion to Adjudicate Omitted Asset Under Family Code Section 2556 by Stan Burman

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.