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The Divorce Encyclopedia
Omitted Property

Term Definition Omitted Property - property not included in a settlement.
Application in Divorce For a number of reasons, a divorce decree may not assign and distribute all of a couple’s assets. This may happen by oversight, as a result of deception, or if the asset was not recognized as distributable property at the time of the divorce.

Most equitable distribution states distribute property only in conjunction with a divorce and res judicata normal bars additional adjudication of property. therefore, when an asset is omitted, a party must find justification for reopening a settled distribution.

In community property states, a former spouse owns omitted property as a tenant in common and may force distribution by partitioning. In equitable distribution jurisdictions, states hold that property must be divided during the divorce, "because there is no authority for a later distribution and/or because principals of res judicata preclude further adjudication of the parties’ martial property rights."

Some jurisdiction provide by statue for a reservation of jurisdiction, allowing the parties to confer to the court the right to divide and distribute omitted property.

Some actions for distribution of omitted property are taken on grounds of fraud. So called extrinsic fraud, which is fraud on the court, must be proven unless the action is initiated a short time after the original decree, which usually means less than one year.

See also Res Judicata; Fraud.

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