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08/08/14 It's The Law: Death Affects Divorce

It's The Law

Death Affects Divorce



A friend of mine just found out he is very ill. He is in the middle of a divorce. What happens if he dies?


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 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 partial judgment of dissolution but reserves jurisdiction to deal with the remaining issues.

Becker v.King is an interesting application of bifurcation. In that case, the judge signed a partial final judgment of dissolution, but reserved jurisdiction to determine other issues including alimony, child support and property rights. Two months later, the judge decided the remaining issues. He contacted the attorneys for the parties, told them of his decision and asked that the attorneys prepare a final judgment for his signature. The husband died before judgment on the financial issues was signed. The judge later signed a judgment on the financial issues and made it retroactively effective to the date he entered the partial summary judgment dissolving the marriage. Appeal was filed by the estate of the deceased former husband.

The appellate court held the judgment was valid. The marriage was not terminated by death, but was terminated by the partial judgment signed by the judge. It explained marriage is intact until a final judgment was signed or death of a party. But, the rule on divorce judgments is an exception to the general rule.

Generally, a judgment exists as of the time the judge announces his decision, and is valid and binding between the parties, even though it has not been reduced to a written signed judgment. The courts follow that general rule when the parties have entered a final settlement agreement with respect to the financial/property issues and one dies before final judgment is signed and entered based on that agreement. But, where the purported agreement is not definite or complete but was preliminary or subject to further negotiation, it cannot be the basis for after-death judgment resolving the financial issues.

Bifurcated cases can get confusing, even when both parties remain alive. In the case of Claughton v. Claughton, the judge entered a judgment of dissolution but reserved jurisdiction to determine alimony and property rights. The wife had been receiving temporary alimony under a prior court order, which continued after the partial judgment of dissolution. The remarriage ended her temporary alimony and the trial judge ruled it also ended all other claims she had to alimony. The appellate court agreed. Florida's Supreme Court overruled both.

The Supreme Court explained the trial judge correctly ended temporary alimony when the former wife remarried. The judge was also correct in ruling that the remarriage ended the former wife's claim to alimony necessary for her support. But, it did not end her claim to lump sum alimony to the extent needed to provide the former wife with an equitable share of the assets of the parties, as distinguished from need for support. In that event, the alimony is used more as an equitable property distribution tool than traditional support.

Death of a party in a divorce case can add complexity. Bifurcation can be even more problematic. These are examples of why good counsel in any litigation is important.

By: William G. Morris, Esquire.

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island EagleOther articles of interest can be viewed at our website, www.wgmorrislaw.com

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