Waiting to Divorce….Don’t Die in the Interim

     Sometimes, although not always, clients want to get their divorces settled, and then wait for “a while” until the final judgment of divorce is entered by the Court.  A myriad of reasons are offered; some that have true validity (I want to keep my spouse on my health insurance until he gets a job that offers those benefits); and some reasons are a little more, um, interesting (I just don’t want to get divorced yet…okay-so the past three, five, or 15 months of litigation was just foreplay?)

    Still, unless I have a judge breathing down my neck to get a case off of his docket, I typically tell the client, “There’s no rush on my part…I’ll still be here when you’re ready.”

    But what happens if, while the client is waiting to get the final judgment, the client, or the client’s spouse, dies?  I mean, after all, both parties entered into a settlement agreement intending to be bound by it, didn’t they? (Of course they did that with the marriage contract too,but that's ancient history)

    Oh no, my dear still married friends.  Death changes everything!  In fact, our very own appellate court (at least if you live in Broward, Indian River, Okeechobee, Palm Beach, St. Lucie or Martin Counties), in the case of Marlowe v. Brown, 944 So2d 1036 (4^th DCA 2006) said so!  In Marlowe¸ the husband and wife entered into a settlement agreement where they agreed to split all assets 50/50.  An order was entered ratifying the agreement, but, as luck would have it, the husband died before final judgment.  When the husband’s brother, as personal representative of the brother’s estate (and still brother-in-law of the surviving wife) tried to enforce the settlement agreement, the court said “no way,” and the divorce was dismissed! Too bad to that brother-likely all the assets of the deceased spouse (or at least those left pursuant to a will or the 33% left if there is no will) went to the almost, but not quite divorced spouse. In Topol v Polakoff 37 FLW D1330 (4^th DCA 2012), an IRA beneficiary had already been changed, but it was voided by the subsequent death of the spouse. So sad for the new “not” beneficiary.

    So, now, I make sure, when a client who has settled the case, wanted to wait, that I explain the potential “risk.”  Sure, it is not going to happen too often, but you never know.

     I guess, at least in Florida, those marriage vows should be amended to say “till death (or final judgment of divorce) do us part.” 

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