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Going through a divorce in California — or anywhere else, for that matter– is painful enough, but what happens if you die during the process?  According to the most recent opinion on the subject from the California Court of Appeal, Marriage of Martin, it’s not necessarily a problem.  You can rest in peace.

The facts of this case are unusual, but they have arisen before.  The parties had a hearing in front of the Family Law judge on May 7, 2012.  The judge granted the divorce.  The husband’s attorney came to court at the time of the hearing with a proposed judgment for the judge to sign.

The judge did not sign the judgment while still on the bench.  A little more than two weeks later, the husband died.

Afterwards, when the matter was brought to the judge’s attention, there was a willingness to grant the divorce after the death — sort of backdating it to May 7.  But then the judge changed his mind.  The Court of Appeal then said, in a published opinion this week, that the judge had it right the first time.

The reasoning can be found in Code of Civil Procedure section 669, which provides “[I]f a party dies after trial and submission of the case to a judge sitting without a jury for decision . . . and before judgment, the court may nevertheless render judgment thereon”.  Since there are no juries in Family Law in California, this section applies to divorce cases.  All of this means that the usual rule — that death ends the case — does not always apply.

The court’s decision is important for two reasons.  First, for psychological reasons, many people who have sought a divorce in their final years do not want to be linked for eternity with a person no longer the subject of their affections.  Second, for children of the decedent — especially children who were the product of an earlier and different marriage — a divorce may mean a greater share of the deceased parent’s estate.  This may be the case even if the court has only granted the divorce itself and not made any orders on property.

The important thing is that the rule in Martin will only work if the judgment was announced in open court before death.  If the parties have signed an agreement to terminate the marriage but never needed to go to court to have a judge pronounce them divorced, but instead have submitted a “judgment package” to the court for the judge to sign, death before the judge has had the time to sign the paperwork will kill the divorce.

The post A Fate Worse Than Death appeared first on Andy Cook Law.


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