Death and Divorce

For every man, woman, and child, death is a certainty. Death is neither convenient or timely. Death itself always comes at a time when no one expects it to happen. What part does death play before a divorce is final? What part does death play after a divorce is final? In this blog, I will specifically address what death does to a divorce proceeding.

Death Prior to Judgment

A divorce is not final until the judge grants the divorce. To clear up some confusion, I have included a list of myths and facts:

MYTH: I filed for divorce so that technically means I am divorced.
FACT: Until a Judge grants your divorce, you are STILL married.

MYTH: I changed my Facebook status to divorced/single/its complicated so that means I am not married.
FACT: Until a Judge grants your divorce, you are STILL married.

MYTH: We are separated and no longer live together plus I am dating someone else so that means I am not married.
FACT:  Until a Judge grants your divorce, you are STILL married.

But, what happens if a spouse dies during the divorce? Does this mean you were still married? Yes, if a spouse dies during a divorce, you were still married. If one spouse dies during the divorce, then the court will dismiss the divorce because the court loses authority to enter any order other than an order of dismissal. The death of a spouse automatically terminates the divorce action if a judgment is not granted.

Death after Judgment

If a divorce is granted and the final decree of divorce is signed by the Judge, then death of a spouse after the divorce has no effect on the finality of the divorce. However, what happens if the Judge granted the divorce but did not sign the decree? For example:

Jack and Jill had a final trial in their divorce matter. Both Jack and Jill testified and the Judge granted the divorce. The Judge told the attorneys to draft a final decree and send it to him for his signature. Later that day, Jack fell down a hill while attempting to gather some water in a bucket. Jack suffered a life-ending head injury and died.

In this instance, the court will not dismiss the divorce because the divorce is final. The Judge already granted the divorce during the final trial. The act of signing the order is considered a ministerial act.

If you or anyone you know has questions pertaining to family law please contact a skilled attorney like a divorce lawyer Arlington TXrelies on today.

Brandy Austin Law Firm PLLCThanks to our friends and contributors from the Brandy Austin Law Firm PLLC for their insight into divorce and family law practice.

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