Handling Omitted Property After Divorce

omitted property divorce

Under Missouri law, when a court enters a final judgment of dissolution of marriage, it is presumed that all marital property has been addressed and distributed. Further, a party may not later move to modify the judgment based on some disagreement with the distribution of property.

What happens if the court failed to distribute all of the marital property?

The answer to this question depends upon whether the court was aware of the property at the time of the entry of judgment. If the parties had submitted the property at issue into evidence and the court failed to include it in the distribution, the court has omitted property it should have distributed. In this situation, it is the responsibility of one of the parties to raise this omitted property to the attention of the court. Usually, a party will file a motion to amend the judgment, bringing to the attention of the court that it failed to distribute the omitted property. Should the court not distribute that property upon such a motion, the party can appeal.

What happens if neither party catches the mistake in time to make a motion to amend the judgment? In that case, one or both parties may file a motion to distribute omitted property, a separate motion in equity. The moving party would have to show the omission was the result of fraud, accident or mistake – otherwise, the court has no basis to disturb the final judgment distributing the property. Mistake would certainly capture property missed by the court and not noticed by the parties until after the time for post-trial motions passed.

So, a party has a means of bringing omitted property to the attention of the court – but the means has a time limit, as a recent case from the Southern District, Klineline v. Klineline, teaches. In Klineline, the court handed down its judgment of dissolution of marriage. Wife filed a motion to amend the judgment, and in its amended judgment, the court struck a paragraph that distributed part of husband’s pension to wife. So, the amended judgment failed to distribute the marital portion of husband’s pension. Wife did not file a motion to amend. Rather, she waited 13 years to file a motion to distribute undistributed property. Wife claimed the delay resulted from her not knowing of the error until she tried to collect on the pension. The trial court and the Southern District both found this position unpersuasive. Wife had to bring her equitable action within ten years of the judgment based on the applicable statute of limitations. Because the wife knew of the changes made in the amended judgment, she had a responsibility to act in a timely fashion.

It is important to note that the statute of limitations will not apply in a situation where the other party fraudulently concealed the property from both the other party and the court. In those situations, the statute of limitations does not begin to run until the party should have discovered the fraud.

So the rule of thumb to remember is that as soon as you suspect the court omitted property from the judgment of dissolution of marriage, you should bring it to the attention of the court immediately.

If you have questions about omitted property and divorce, contact us – we can help.

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