Can I Proceed With My Divorce Settlement Even If My Spouse Becomes Incapacitated or Passes Away?
Divorce Settlement Attorneys If My Spouse Becomes Incapacitated or Passes Away
Serving Clients in towns throughout Ocean County towns such as Toms River, Wall, Point Pleasant, Asbury Park, Spring Lake, Brick, and all of Eastern New Jersey
The COVID-19 pandemic has brought with it an alarming amount of deaths, more than 400,000 only in the United States, affecting numerous families over the past year. People that are either starting or in the middle of a divorce process can’t help but wonder what would happen if their spouse is not able to actively complete the process due to becoming incapacitated or, even worse, passes away due to COVID-19 related complications.
Is a Guardian or Legal Representative Required?
Courts have the ability to appoint a guardian or legal representative, to appear or act on behalf of the incapacitated spouse during the divorce process. Having signed a Power of Attorney designating someone to guard a person’s wishes and property might not suffice; therefore, an actual legal guardian needs to be approved by the Court. In case the spouse is unable to select a guardian before becoming incapacitated, a close relative or friend can actually take care of the guardianship application, or the Court can also appoint a neutral subject, such as an attorney, to represent whoever requires it.
Designating a guardian is, of course, a process revised by the Court and depending on how serious is the level of incapacity, a decision might be reached to have the guardian appointed only with limited power, thus still allowing the spouse in question to participate in the decision-making process when admissible actively.
The Court could also choose to designate a guardian holding full authority on behalf of the incapacitated person. This guardian would be able to follow and participate in the divorce negotiation portion and finalize the proceeding itself, even submitting a Property Settlement Agreement and Final Judgement of Divorce. Whenever a final settlement is not acquired through a regular divorce process, the guardian can participate in a trial on behalf of the impaired spouse.
Fair Distribution of Equity
Nevertheless, other complications may arise if the spouse passes away after a divorce complaint is filed. For example, a divorce proceeding would be deemed as effectively terminated in a scenario where the spouse passes away before the judgment of divorce being registered but after the complaint was entered. Although any benefits expected from an equitable distribution according to the divorce law would no longer be available.
The Court will always attempt to rule in favor of equity; therefore, if a spouse’s passing would result in an unfair distribution of benefits, meaning that one party would become unreasonable wealthier, the Court will overview the entire divorce process to its conclusion, enforcing its authority to work on a fair resolution for the surviving party.
Determining every step of the divorce claim is part of an analytical process that needs to consider the consequences of the spouse passing away versus what the most likely outcome would be. For example, if the deceased had already designated the now divorced party as a beneficiary of certain equity, values, or properties, that would be less than what the divorced surviving spouse would be entitled to as part of a divorce claim; the surviving spouse would most likely prefer to have the Court rule and finalize the divorce. If, on the other hand, the deceased spouse did not edit or alter their last wish and will, thus all the assets would be assigned solely to the spouse, any other survivors might actually want to try for the Court to establish a fair distribution of assets.
What Is A Constructive Trust?
Courts do allow the surviving party or spouse in a divorce claim to complete the fair and just distribution of remaining capital and assets through an amendment filed as part of the divorce against the deceased spouse’s estate. In addition, the surviving parties have the option to seek benefits through constructive trust.
A constructive trust is not an actual trust as the literal concept would suggest; instead, it is only a legal form utilized as a remedy for unfair enrichment. There is no appointed trustee. Instead, the constructive trust orders the person who would otherwise be unjustly enriched to transfer the property to the surviving parties or spouse. The constructive trust is a means through which the Court may reach a more favorable and equitable distribution of the estate in question.
Do remember that there might be important differences when reaching an equitable distribution of the estate, especially when referring to a pension fund or any other kind of retirement plan established during the duration of the marriage agreement. Considering that many retirement plans are ruled by the Federal Law and cannot be altered by a state court, benefits suitable to a former spouse would only be available during the employed spouse’s lifetime and thus be terminated once the employee passes away.
Additionally, depending on how real estate has been recorded or titled, the estate may be transferred to the surviving spouse without any further proceedings. Therefore, the surviving spouse needs to comprehend all the above-mentioned facts before participating in the divorce process itself.
Contact our Woodland Park, NJ Divorce Lawyers for a Free Consultation
If you or a loved one are facing a divorce process or divorce-related dispute, seeking a fair and equal distribution of assets and estate, you are entitled to the representation of a divorce attorney who can help you determine your best options.
Our experienced team of attorneys is ready to stand in your corner at Bronzino Law Firm, LLC. If you live in Toms River, Wall, Point Pleasant, Asbury Park, Spring Lake, Brick, and Eastern New Jersey. You can call us at (732) 812-3102 or contact us through our online contact form.