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Does the Death of a Spouse Prevent a Judge from Issuing a Divorce Decree in Arizona

Posted on : November 17, 2016, By:  Christopher Hildebrand
Does the Death of a Spouse Prevent a Judge From Issuing a Divorce Decree in Arizona

Does the Death of a Spouse Prevent a Judge from Issuing a Divorce Decree in Arizona?

It takes two to marry, but only one to divorce in Arizona. That is, one spouse can obtain a divorce whether the other wants to call it quits or not. But what happens if a spouse dies during divorce proceedings? Can the other proceed with the divorce? The Arizona Court of Appeals considered this issue in Van Emmerik v. Colosi, 972 P.2d 1034 (1998).

Facts and Background

Mr. Todd filed for dissolution of his marriage to his wife, Mrs. Todd. Service of the petition created an automatic preliminary injunction stopping Mr. Todd and Mrs. Todd from transferring property. Despite this, Mr. Todd transferred a significant amount of property to Mrs. Emmerik. He died shortly after transferring property while the divorce was pending. The divorce court had not issued any orders in the action other than the automatic injunction.
Does Death of a Spouse Prevent a Judge From Issuing a Divorce Decree in Arizona
Mr. Todd left a will naming Mrs. Emmerik as his residuary legatee. His personal representative opened probate. The courts consolidated the dissolution and probate actions. The divorce judge continued with the divorce action despite husband’s death. Mrs. Todd filed for an order to show cause about husband’s property transfer and the court proceeded with the hearing.

Mrs. Emmerik petitioned this court for special action. She asked the Court of Appeals to dismiss the divorce action.

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Death Ends Dissolution Action

The Court of Appeals noted that both a dissolution of a marriage and the death of a spouse extinguish a marriage. Therefore, it ruled that a dissolution action necessarily ends if the spouse dies.

Mrs. Todd relies on the case of Allen v. Allen, 628 P.2d 995 (1981) that allowed a divorce case to continue after the husband’s death. However, the Court of Appeals noted that that case was not relevant here. In that case, the court had issued a rendition of judgment before the husband died.

Here, the court had not heard and determined even one divorce issue in the case between Mr. Todd and Mrs. Todd. Therefore, it could not issue a divorce decree and, because Mr. Todd was dead, it could not proceed with the divorce action.

Disposition

The Court of Appeals ordered the superior court to dismiss the dissolution action in favor of the probate action.


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