It’s the Law: Death Affects Divorce

 

Some people criticize our legal system, but despite some flaws, most would agree it is superior to those in other countries. The very structure of our court system can confuse almost anyone, as there are separate courts for marriages (family court), crimes (criminal court), death (probate court), appeals (appellate court), and a Supreme Court to sort out disputes that linger after dispositions in the lower courts.

Divorce issues are almost always settled in family court, but if one of the parties dies before final resolution the case may fall under the jurisdiction of a probate court judge. The Naples News recently shared an article on this rare but real situation:

Naples-Daily-News2 Question: A friend of mine just found out he is very ill. He is in the middle of a divorce. What happens if he dies?

Answer: If one of the spouses in a dissolution case dies before entry of a final signed judgment, the trial court loses jurisdiction. By operation of law, the marriage terminates when one spouse dies. That is true even if the parties have gone to trial and the judge has orally ruled but has not reduced the ruling to a written signed judgment. But, the “rule” is not without exceptions. As with a lot of legal matters, it can get complicated. That is especially true when the case is bifurcated.

In a bifurcated dissolution case, the court separates financial and property issues from marriage termination and treats each separately.

Bifurcation is not favored by the courts, as there is a strong public policy in favor of a complete resolution of all issues in a case. Bifurcation is disfavored because it creates multiple legal and procedural problems that cause delay and additional expense. One circumstance where judges may look favorably upon a request for bifurcation is when one party to the dissolution action is extremely ill and might die before completion of the more complex issues of asset distribution, child support or alimony. In those cases, the court enters a partial judgment of dissolution but reserves jurisdiction to deal with the remaining issues. Full Story@ NaplesNews.com

Given the complexities of our legal system, it is prudent to secure the advice of a skilled attorney.

Ellen Dee Silvers has practiced law in south Florida for 30 years and is highly qualified to guide clients through any legal case involving family law. Ellen can be reached at 305-931-7112

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