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What Happens When a Party Dies During a Divorce Proceeding?

Posted By Posted by Damien McKinney on Feb 19, 2014 8:25am PST || Feb 19, 2014

In general, if a party dies during the proceeding and the court has not held a hearing on the merits of the matter, then the matter is dismissed. The other party files a document called a suggestion of death. If no other interested party (such as the estate) files a motion for substitution, then the case is dismissed. There are a few situations where an interested party can file a motion for substitution to carry forth the action, such as a claim for attorney’s fees. In Passamondi v. Passamondi, the Second District Court of Appeals dealt with this issue. The Former Husband in Pssamondi, was suffering from a terminal illness. For this reason, he filed a motion for bifurcation of the proceedings. The trial court granted the motion. The trial court entered a final judgment that dissolved the parties marriage, but also reserved jurisdiction to address the equitable distribution issues and any other issues that have been pled.

The Former Husband subsequently passed away. Afterwards, the Former Wife filed a supplemental petition for relief in the dissolution of marriage proceeding against the Former Husband’s estate and his three children. The trial court ultimately decided that it did not have jurisdiction to decide the outstanding equitable distribution issues because the Former Husband had died and his estate was going through the probate process. The appellate court did not agree with the trial court. The appellate court found that when a trial court bifurcates a proceeding for dissolution of marriage by entering a judgment dissolving the marriage but retaining jurisdiction to determine property issues, the subsequent death of a party does not deprive the trial court of jurisdiction to determine the issues reserved. In this case, the trial court had entered a final judgment dissolving the parties' marriage and retaining jurisdiction to determine all other issues before the death of the Former Husband. Therefore, the trial court incorrectly concluded that it did not have jurisdiction to hear and to determine the Former Wife's claims.

If you believe you are affected by this appellate court decision, contact your expertfamily law attorney to discuss your rights and responsibilities.

Categories: Divorce

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