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Decades Of Litigation Experience

‘Til Death Do You Part

by | Jun 9, 2021 | Firm News |

By Regina M. Competiello, Esq.

Divorce is hard enough as you consider all the things in your life that are changing. There are a dozen things to hash out in a settlement or litigation, but something that is often overlooked is what happens in the event of a medical emergency or in the event of an untimely passing.

If you are going through a contentious divorce the last thing you may be thinking of is who is going to make decisions for you if you are rendered incapable of making them for yourself. Just because you have filed for divorce, it does not make you in fact “divorced,” which can only be done by an order of the Court. By operation of law, if you do not have health care proxy or written directive, for example, if you were to become incapacitated during your divorce proceedings, your soon to be ex could be the one left to make the decisions. In addition to incapacity, in the event you were to pass without being divorced, your soon to be ex could still be entitled to much of your estate. It is significant to note that case law in New York has held that after a party has passed away the Court can still sign a judgment of divorce if the only remaining issue was a technicality, such as the judgement of divorce merely needing a signature and all other actual litigated issues of the case have been resolved. For example, where a Stipulation of Settlement was entered into, and all proper Judgment of Divorce documents have been filed with the Court, the Court would consider the same resolved and technically the Judgment of Divorce can be entered as if both spouses were alive.

In order to make sure you are not put in any of these positions be sure to discuss with an attorney your options to ensure that you are protected in every way throughout your divorce proceedings