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Top Orange County divorce lawyers; The Maggio Law Firm

How Is A Divorce Proceeding Affected When One Spouse Dies?

Top Orange County divorce lawyers; The Maggio Law FirmGoing through a divorce can be emotionally and physically challenging but imagine if your spouse passed away during the divorce proceeding. As it is, divorce is a complicated process and in such situations, it becomes even more complicated. In California, it can take almost six months for the divorce to end during which anything can happen. It is a rare thing for a spouse to die during a divorce proceeding but what should you do if you face such a situation?

Death before divorce

If the death occurs during the divorce proceeding, then the divorce case will be cancelled. That means the surviving spouse will receive the property, child custody and other assets that he/she would get in case of the spouse’s death. It does matter if the couple has decided on the division of property and child custody or has made parental plans. The surviving spouse is entitled to receive every bit of marital property which they owned during marriage.

Death after divorce

If the spouse dies after a judgement has been passed, then the divorce stays. However, things like spousal support and child care which the surviving spouse should have received will now come through some other means. It could be from the property that the deceased spouse has left behind or some stocks or bonds. The surviving spouse can only be entitled to those assets which the deceased spouse has mentioned in his/her will.


Exceptions arise when allegations of fraud and cheating arise against the surviving spouse. The court may wish to keep the divorce case open if it wants to. Misrepresentation and misconduct are also counted as exceptions and if the court finds any evidence of such activities, then it has the right to keep the case open.


Divorce is a complicated process because issues like child care, property division and other related issues are present. However, when one of spouse contesting the divorce dies, the case becomes even more complicated. Usually, if the spouse dies during the divorce proceeding, then the entire finance and child custody goes to the surviving spouse. However, if the spouse dies after the divorce proceeding is finished, the spouse does not receive anything extra. He/she will receive spousal support and child care from the remaining assets. In case of exceptions, the court has the right to keep the case opened for as long as it wishes to.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

divorce_attorneyGerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.



Orange County divorce lawyers; The Maggio Law Firm

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