Joinder and Intervention of Third
Parties in Divorce Actions
Laura W. Morgan
When marital property is in the hands of third parties, either
by fraudulent conveyance, dissipation, or because a distinct
entity such as a trust or corporation is owned by the parties,
the best practice is to join the third party as a party to
the divorce suit. Without such joinder, due process principles
might dictate that the third party is not bound by any decision
the court might make with regards to the property.
Interestingly, however, a minority of states have held that
a third-party claim can be litigated without actually joining
the third party, so long as the result of the case does not
prejudice the third partys rights. Gerow v. Covill,
192 Ariz. 9, 960 P.2d 55 (Ct. App. 1998) (court can decide
fraudulent conveyance issue without joining recipient, so
long as recipients rights are not affected); Carroll
v. Carroll, 55 Conn. App. 18, 737 A.2d 963 (1999) (where
husbands mother was not a party to divorce action, divorce
courts decision as to amount of debt would not bind
husband in later action against mother); Colclasure v.
Colclasure, 892 P.2d 676 (Okla. Ct. App. 1995) (proper
to find that wife had 25% interest in business with third
party; noting that third party would not be bound by the result).
If the litigation does not prejudice the third partys
rights with regard to the property, however, there seems little
use in not joining the third party.
Some states have even held that third party rights must be
litigated separately. Boyle v. Boyle, 194 W. Va.
124, 128, 459 S.E.2d 401, 405 (1995); Timmerman v. Timmerman,
891 S.W.2d 540 (Mo. Ct. App. 1995).
Third parties cannot, however, intervene in a divorce action
without a specific claim for a specific asset. General unsecured
creditors may not intervene. Luthen v. Luthen, 596
N.W.2d 278 (Minn. Ct. App. 1999); Nielson v. Thompson,
982 P.2d 709 (Wyo. 1999). Third parties can intervene only
to the extent that they possess a claim to ownership rights
in a specific marital asset.