¶ 23 "The right of survivorship of a joint tenant does not arise out of the marriage relationship." In re Woodshank's Estate, 27 Ill.App.3d 444, 447 (1975). A divorce decree alone does not serve to sever a joint tenancy.

Under Illinois law the joint tenancy is preserved "until a conveyance divesting one tenant of his interest has been executed by the sheriff following a judgment sale. . . ." ( In re Estate of Woodshank (1975) 27 Ill. App.3d 444 [ 325 N.E.2d 686, 689].) In Knibb v. Security Ins. Co. of New Haven (1979) 121 R.I. 406 [ 399 A.2d 1214], a case remarkably like this one, the joint tenant died after his judgment creditor had recorded levies of execution but before the property was sold.

Id. at 886. Roberta relies on the cases of In re Estate of Woodshank, 27 Ill. App.3d 444, 325 N.E.2d 686 (1975), and Nichols v. Nichols, 43 Wis.2d 346, 168 N.W.2d 876 (1969). However, in both of those cases the dissolution decree specifically provided that the property would remain in joint tenancy, but gave each party the right to sell.

The general rule appears to be that in divorce actions the intent of the parties, if expressed by stipulation or express directive of the court, governs the termination of joint tenancies in marital property. Mann v. Bradley, 188 Colo. 392, 535 P.2d 213 (1975); Warlord v. Hale, 410 So.2d 885 (Ala. 1982); Mamalis v. Bornovas, 112 N.H. 423, 297 A.2d 660 (1972); Thomas v. Johnson, 12 Ill. App.3d 302 (1973); In re Estate of Woodshank, 27 Ill. App.3d 444 (1975); Gaskie v. Hugins, 640 P.2d 243 (Colo.Ct.App. 1981). The question then is: What was the intent of the parties in the instant case. It is clear from Judge Jones' memorandum decision that the parties did not enter into a stipulation explicitly severing the tenancy.

This conclusion is further supported by the general rule concerning the legal effect of a divorce decree upon property rights, namely that divorce terminates those property rights and interests of the divorced persons that are not actually vested in the property of each other which are dependent upon the marriage relationship unless preserved by statute. In re Woodshank's Estate, 27 Ill. App. 3d 444, 447 (1975), (citing Bulger v. Bulger, 291 Ill. App. 233, 235-36 (1937)). See also Seuss v. Schukat, 358 Ill. 27, 35-36 (1934). ¶ 61 There has been no change to the rules of deed construction since our supreme court decided the Mittel case in 1890, and we give effect to the parties intent where it is not contradicted by law or public policy.

The appellate court has the discretion to determine whether an appeal should be dismissed for failure to timely file the record, even where no extension for filing was requested. See In re Estate of Woodshank , 27 Ill. App. 3d 444, 449, 325 N.E.2d 686 (1975). ¶ 20 Here, the parties do not dispute that neither the record nor any motion for an extension of time to file the record was filed during the period provided for in Rule 326.

• 1-3 The parties correctly agree that a judgment for dissolution of a marriage will not alone cause severance of a joint tenancy in real estate. (See, e.g., In re Estate of Woodshank (1975), 27 Ill. App.3d 444, 447, 325 N.E.2d 686.) The right of survivorship of a joint tenant does not arise out of the marriage relationship and, absent either an express intent to sever or conduct inconsistent with the continuation of the joint tenancy, it will continue after a dissolution of the marriage of joint tenants.

However, the Illinois Appellate Court has addressed this very issue and has held: "we think the better view is the rule which prevails in other jurisdictions: a divorce decree alone does not effect a severance of joint tenancy real estate." In re Estate of Woodshank (1975), 27 Ill. App.3d 444, 447, 325 N.E.2d 686; see also In re Estate of Coleman (1979), 77 Ill. App.3d 397, 395 N.E.2d 1209; Nichols v. Nichols (1969), 43 Wis.2d 346, 168 N.W.2d 876; Poulson v. Poulson (1950), 145 Me. 15, 70 A.2d 868; Witzel v. Witzel (Wyo. 1963), 386 P.2d 103; Gwin v. Camp (1938), 25 Cal.App.2d 10, 76 P.2d 160. • 1 The rationale articulated by the Woodshank court was that divorce terminates those property rights and interests not actually vested, of divorced persons in the property of each other which are dependent upon the marriage relationship such as dower, curtesy, and rights of inheritance under the statute of descent, but that property rights of a husband and wife which exist independently of the marriage survive the divorce judgment.

The intent to sever was the controlling issue, although the technical and largely ceremonial aspects of the "strawman" transaction were observed. Illinois has recognized any number of ways in which joint tenancies can be severed: mortgaging an interest to a stranger ( Lawler v. Byrne (1911), 252 Ill. 194, 96 N.E. 892); deeding the property to a stranger ( Szymczak v. Szymczak (1923), 306 Ill. 541, 138 N.E. 218); a contract between the joint tenants to sever ( Duncan v. Suhy (1941), 378 Ill. 104, 37 N.E.2d 826; In re Estate of Coleman (1979), 77 Ill. App.3d 397, 395 N.E.2d 1209); involuntary conveyance by a sheriff divesting one tenant of his estate following a judicial sale ( Jackson v. Lacey (1951), 408 Ill. 530, 97 N.E.2d 839; In re Estate of Woodshank (1975), 27 Ill. App.3d 444, 325 N.E.2d 686); conveyance of a remainder interest while reserving a life estate ( Klouda v. Pechousek (1953), 414 Ill. 75, 110 N.E.2d 258); conveyance from one tenant to another tenant ( Jackson v. O'Connell (1961), 23 Ill.2d 52, 177 N.E.2d 194); executing a contract to convey the property ( Naiburg v. Hendriksen (1939), 370 Ill. 502, 19 N.E.2d 348); transfer to a trustee ( Flynn v. O'Dell (7th Cir. 1960), 281 F.2d 810). If one examines those cases, it is obvious that courts have been inclined to allow severance in any variety of ways once the intent to sever has been demonstrated.

Initially, we note that this argument was not raised in defendants' initial brief in this court but was presented first in the reply brief, and it is therefore waived. ( Davis v. Retirement Board of Policeman's Annuity Fund (1975), 30 Ill. App.3d 318, 332 N.E.2d 446; In re Estate of Woodshank (1975), 27 Ill. App.3d 444, 325 N.E.2d 686.) Moreover, defendants' reasoning is faulty.