The Impact of Death before the Final Divorce Decree is Signed
If you’ve gone through a divorce proceeding and the judge has signed the final order, it will be binding, regardless of what subsequently happens to either of the parties. In those circumstances, should one of the parties die, the distribution of their property will be in accordance with their individual estate planning. Those documents may also have a bearing on the custody of minor children of the divorce. But what happens when a divorce complaint has been filed, but the court has not issued the final decree/order, and the husband of wife dies? In Texas, that depends on whether the parties have come to any separate agreement or whether the court has “rendered a full and final adjudication on all the issues involved in the case.”
The Death of a Party before Any Agreement or Adjudication
If the divorce proceeding is truly pending—if the parties have not entered into a mediation settlement agreement and the court has not issued an oral or written adjudication, the divorce action must be dismissed. This follows the ruling from the Texas Court of Appeals in Dohrn v. DelgadoTexas Court of Appeals in Dohrn v. Delgado, in 1996, which held that because a divorce is a purely personal matter, the death of one of the parties makes the proceeding moot. In such a situation, all marital property passes according to the parties’ estate planning.
Death after Mediation or Adjudication
If the parties to a pending divorce have gone through the mediation process, resolved all disputes related to the divorce, and signed a valid mediation settlement agreement, that document will become binding and enforceable, even if one of the parties dies before the document itself is made a part of the court records, or before the court enters a final divorce decree. Under Texas law, such a settlement agreement is as enforceable as any other contract, provided it has been formalized in writing. The court has the discretion to incorporate any terms found in the settlement agreement into its final decree, but may also choose to reject those that are inconsistent with or in addition to any prior court order.
Furthermore, under established Texas law, if the judge has rendered a full and final adjudication on the merits in a judicial proceeding, the terms of that order will be binding on both parties, even if one of the parties dies before the final order is signed and entered into the record. If, on the other hand, the surviving spouse can show that there were issues still unresolved at the time of death, whether related to property, custody, access or support, the court will not have been considered to have issued a full and complete judgment. In those circumstances, the death of one spouse will necessitate the dismissal of the divorce proceedings.
Contact the Experienced Family Law Attorneys at Bailey & Galyen
At the law office of Bailey & Galyen, we offer a free initial consultation to every client. To speak with a proven divorce lawyer, contact us by e-mail or call our offices at 844-402-2992. We will take your call 24 hours a day, seven days a week.
