§69.05 Defenses

• Jurisdiction: Washington

§ 69.05 DEFENSES

Equitable defenses such as res judicata, equitable estoppel, waiver and adverse possession may be available in an action to divide undistributed property but the burden rests heavily on the party asserting the defense.

[1] Res Judicata

Although pled as a defense in various cases, res judicata has not been successful as a defense to an action to adjudicate the parties' rights to undistributed assets, for the very reason that the matter was not considered and disposed of in the divorce proceeding. In re Marriage of de Carteret, 26 Wn. App. 907, 909, 615 P.2d 513 (1980); see also Pittman v. Pittman, 64 Wn.2d 735, 393 P.2d 957 (1964).

[2] Equitable Estoppel

Equitable estoppel is available as a defense to a spouse when it is alleged there is community property undivided in a decree. However, an action for partition is equitable in nature. Cummings v. Anderson, 94 Wn.2d 135, 614 P.2d 1283 (1980). Therefore, even when community property is undistributed by a divorce decree, and the parties have a vested one-half interest in the property, a party may be equitably estopped from asserting that right. McGill v. Hill, 31 Wn. App. 542, 644 P.2d 680 (1982). Equitable estoppel requires (1) acts, statements, or admissions inconsistent with a claim subsequently asserted; (2) action or change of position on the part of the other party in reliance upon such acts, statements, or admissions; and (3) a resulting injustice to such other party, if the first party is allowed to contradict or repudiate his or her former acts...