Legal Question in Family Law in California
H is personally served with W's Petition for Dissolution of Marriage;
b. H never appears or files an answer;
c. W does not take H's default, but files a motion
for a status only dissolution. This means the court is not deciding any other issues and is just returning the parties to single status.
d. W's motion is granted and a bifurcated judgment of status only dissolution is entered in April of 2009.
e. W discovers H has certain retirment benefits through employment and joins the company (in this case Georgia Pacific) into the dissolution action. This causes the pension administrator, Vanguard, to freeze the pension benefits until the family law court decides how they shall be divided.
f. In order to divide pension benefits, the court issues what is called a Qualified Domestic Relations Order, or QDRO, directing the pension administator on how to divide the asset.
g. Before the QDRO can be issued, H passes away.
h. Following H's death, W tries to take H's default so the QDRO can be issued as part of her default judgment, but the court clerk refuses to accept the request and says W has to file a motion for a judgment on reserved issues (but doesn't say why).
Question(s): If W files a motion for a judgment on reserved issues, who does she serve? Can she serve the deceased at his last known-address? If not, then who.
3 Answers from Attorneys
I'm not sure if you can complete a divorce case after one spouse dies, but if you can, you would serve the executor of the dead spouse's estate.
If the default remains effective, the court should set a default hearing to divide the marital property which was identified in the petition for dissolution originally served. A motion should not be necessary. If there is an order determining the terms of the QDRO, a QDRO, complying with the order should be prepared and submitted to the court. You should consult with a family law attorney to determe what is actually needed to accomplish what you want.
The status of the marriage was terminated. If the court retains jurisdiction, the family court decides any remaining issues. If an estate is opened, the person issued letters testamentary or letters of administration is served, in addition to the plan administrator on the QDRO. You don't serve dead people.