It is possible that one of the parties to a divorce dies in the middle of the divorce process. Divorce alone is a stressful time, but adding the complication of a spouse who is sick or is experiencing other problems that could lead to their death can add even more stress to the divorce process. The question then arises is can you continue to proceed with a divorce case if your spouse passes away during the divorce case?

The simple answer to this question is that in Illinois you normally cannot proceed with a divorce if one of the parties dies., If one of the parties to a divorce case passes away at any time before the divorce is finalized without any action being taken as described below, the divorce case can no longer proceed, and the Court is required to dismiss the case.

If you are in the process of getting divorced (or considering getting divorced) and you or your spouse have serious concerns that one of you may pass away during the divorce case because of illness, age, or any other factor, there are a few things that you can consider in order to protect your rights. To ensure that you can be divorced before you pass away, you may seek to enter a “bifurcated judgment.” This is a request that the Court enter a judgment on only some of the issues in your case, while reserving other issues (such as division of property, division of debts, parenting issues, etc.) for the Court to decide at a later date. If the court grants a motion to bifurcate your divorce case, usually a “grounds-only” judgment is entered allowing the divorce case to proceed even if one of the parties to the case passes away. See 750 ILCS 5/401(b).

If a bifurcated judgment is entered, granting a divorce while reserving other ancillary issues, then the deceased party’s estate can represent that party’s interests going forward in the divorce proceedings even after they pass away. This is a complicated and nuanced area of family law that can lead to conflict and unnecessary litigation if not handled properly.

Contact an experienced member of the Beermann LLP’s legal team for guidance on this issue, and all of your other family law questions.

Andrew B. Ference, Partner

For more on Mr. Ference, please visit:
www.beermannlaw.com/team/andrew-b-ference.