What if a spouse dies before divorce is final?

[HandA 2]

Hello VJers and congratulations VJ Webmater for latest VJ Makeover,

I just have a quick questions only out of curiosity... If former spouse dies while in the process of a divorce proceeding, what would USCI asks during a K-1 fiance petition? I am assuming that the court will grant the divorce (or won't they, since the person is no longer alive?), but does USCI still asks for death certificate?

HandA

PS: I don't want to wish this on anyone, but I brought it up as a food for thought!!!

[redstarwarrior 0]

I'd imagine that you wouldn't have to continue the divorce if the spouse dies, but there could be a lot of legal issues that result from the pending divorce proceedings.

Including either/or would probably work as both indicate that the previous marriage is no longer active.

[And_Sam 44]

Hmmm this is interesting. I would think that unless your case has gone in front of the judge, the death would overrule the divorce. I haven't ever heard of a divorce being granted to someone who has passed away. Makes you think to have your will changed before the divorce is final!

[Marina-Del 10]

Yeah, I agree with above. The divorce would definitely not continue. Why should it? How can a dead person be divorced? Either way the marriage is no longer valid, so that's that! In this case the petitioner/beneficiary would show the death certificate of the prior spouse. Probably USCIS wouldn't even know that there had been a divorce in progress, and really they wouldn't need to know. The only way that it could be relevant is if the alive spouse started dating their new husband/wife BEFORE the prior one died, then they'd have to explain that divorce proceedings were in order at time of death.

As a side note, if you are asking about a K-1 visa, this is not the forum to be in. This is the CR-1 or IR-1 forum, but as this is a hypothetical situation, it doesn't really matter!

Edited April 2, 2010 by Marina-Del

[SunDrop 59]

As a side note, if you are asking about a K-1 visa, this is not the forum to be in. This is the CR-1 or IR-1 forum, but as this is a hypothetical situation, it doesn't really matter!

Moving to K-1 process forum from CR-1/IR-1, as guessing a CR-1 petitioner isn't going to be getting divorced while filing!

[VanessaTony 3,567]

Hmmm this is interesting. I would think that unless your case has gone in front of the judge, the death would overrule the divorce. I haven't ever heard of a divorce being granted to someone who has passed away. Makes you think to have your will changed before the divorce is final!

Out of interest (this may depend on your country but in Australia at least..) divorce does not cancel a Will which is why major family changes require you to actually make sure you change your Will. Marriage DOES cancel out a Will unless it's made in contemplation of marriage and that wording is inserted in the Will, as well as the name of the fiance such as "this Will is made in contemplation of my marriage to Jim Smith".

As for death & divorce, death WOULD cancel out the divorce as, as stated, a dead person cannot sign the final decree or negotiate the terms. The divorce stuff is over but it's likely there's some legal stuff involved such as 1. make sure the former spouses lawyer is aware of the former spouses death 2. locate the Will (if available) and start probate 3. the spouses former lawyer will need to be paid from her estate for the divorce stuff.

In regards to your qn specifically, USCIS need proof of termination of the marriage, whether this be annulment papers, divorce papers or death certificate of the former spouse.

So if you were previously married and your former spouse died, then the marriage certificate from that marriage, and the spouses death certificate are required as proof of marriage and subsequent "end" of the marriage so that you are now "free to marry".

[ScottThuy 140]

no final divorce decree from a court= not divorced... married at the time of death.. the divorce becomes moot...

[FrancElsie 6]

no final divorce decree from a court= not divorced... married at the time of death.. the divorce becomes moot...

Excellent post...short, sweet and to the point!!!!! (I agree with you.)

Franc

[toma1 10]

If former spouse dies while in the process of a divorce proceeding,

This is actually a simple question that has a precise legal answer:

The spouse is not "former" until the divorce is FINAL. So the answer to your question is that the surviving spouse becomes a widow/er and the marriage contract ends. There is no divorce. You will not ever be divorced from that person as you cannot divorce a dead person to whom you are no longer married.

Similarly, if you were in the process of a divorce but reconciled with your spouse and ended the divorce proceeding before it was final you would not have to be married again as you would STILL BE married. However, if the divorce was final and you reconciled, you would have to be remarried.

[pushbrk 12,898]

Hello VJers and congratulations VJ Webmater for latest VJ Makeover,

I just have a quick questions only out of curiosity... If former spouse dies while in the process of a divorce proceeding, what would USCI asks during a K-1 fiance petition? I am assuming that the court will grant the divorce (or won't they, since the person is no longer alive?), but does USCI still asks for death certificate?

HandA

PS: I don't want to wish this on anyone, but I brought it up as a food for thought!!!

Any divorce granted where one party is dead already would be in error. Any death certificate would pre-date any divorce decree, invalidating and superseding the decree.