Tuesday, January 19, 2010

New Jersey Supreme Court Allows Divorce to be Obtained After Death

Years ago, the New Jersey Supreme Court held that a spouse may continue divorce litigation after the other's death for the sole purpose of proving that the deceased spouse had diverted marital assets.  The divorce is an equitable method of recovering those diverted assets for equitable distribution. 

Last week, the New Jersey Supreme Court considered for the first time the reverse scenario.  In Kay v. Kay, the deceased spouse raised the claim that marital assets had been diverted during marriage.  The question was whether a divorce action to recover diverted assets for equitable distribution could be maintained by the deceased spouse's estate. 

The Court held that the right to continue divorce litigation under these circumstances is reciprocal.  Equitable distribution statutes exist to promote equity and fair dealing between the spouses, and depriving the estate of the opportunity to pursue its claim would not serve those policies.

Read the opinion here.



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