The traditional rule is that an action for divorce is purely personal in nature and that the death of one of the parties causes the action to terminate or “abate.” The rationale for this rule is simple: when one of the divorcing parties dies before a final divorce decree is entered, the marriage is over (you’re dead!), no need for a court to restate the obvious. But we all know the moment a lawyer utters the words “general rule,” you can expect the next sentence to start with, “but there’s an exception.” And this case is no different.
What about “bifurcation”?
A well-recognized exception to the general rule applies when the divorce proceeding is bifurcated. The death of a spouse does not terminate the divorce proceeding or the family court’s jurisdiction if (i) a final judgment was entered prior to the death and (ii) the family court retained jurisdiction to resolve remaining property issues. See Fernandez v. Fernandez, 648 So.2d 712, 714 (Fla.1995); King v. King, 67 So.3d 387 (Fla. 4th DCA 2011). In other words, the property-division fight continues before your family-court judge, it doesn’t transfer over to your probate judge. It’s this last point that’s at the heart of the Passamondi case discussed below.
In this case when Former Husband filed his petition for divorce he was suffering from a terminal disease. For this reason, he filed a motion requesting a bifurcation of the proceedings. The family court granted the motion. According to the 2d DCA, in its final judgment dissolving the parties’ marriage, the family court specifically
[R]eserve[d] jurisdiction over this cause and each of the parties to enter such further Orders, Judgments, and Decrees as may be necessary at any time in the future to resolve all equitable distribution issues and any other issues which have been pled.
Former Husband died shortly thereafter. One of Former Husband’s children commenced a probate proceeding and Former Wife filed a creditor claim in the probate proceeding based on her “undetermined marital interest in all of the real, personal and intangible property of decedent preceding his death as so determined in” the pending dissolution of marriage proceeding. So far so good.
But then the case basically went dormant . . . for four years! I’m guessing partly out of frustration at this inactivity, the family-court judge set a final hearing and basically booted the case off her docket. According to the family-court judge, this was now the probate judge’s problem. Here’s how the point was made in the family-court’s dismissal order:
[B]y virtue of the death of the Former Husband and the opening of a Probate Estate for him, the Probate Court was vested with exclusive control over the Former Husband’s assets and the Probate Court had exclusive jurisdiction to determine the proper manner of distribution of the Former Husband’s assets after payment of all creditors of the Estate of which the Former Wife was one….
Who decides property-division issues? Probate Judge or Family Judge?
While one might sympathize with the family court’s desire to clear its docket of zombie cases, the way the court went about dealing with the problem was fatally flawed. As explained by the 2d DCA, when a family-court judge retains jurisdiction to decide property issues post the couple’s divorce, the case doesn’t go away just because one of the ex-spouses dies.
If a trial court bifurcates a proceeding for dissolution of marriage by entering a judgment dissolving the marriage but retaining jurisdiction to determine property issues, the subsequent death of a party does not deprive the trial court of jurisdiction to determine the issues reserved. See Fernandez v. Fernandez, 648 So.2d 712, 714 (Fla.1995). In this case, the trial court had entered a final judgment dissolving the parties’ marriage and retaining jurisdiction to determine all other issues before the death of the Former Husband. Therefore, the trial court incorrectly concluded that it did not have jurisdiction to hear and to determine the Former Wife’s claims. It follows that the trial court’s dismissal of the Former Wife’s remaining claims constituted error. For this reason, we reverse the trial court’s order and remand this case to the trial court for further proceedings.