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Any temporary orders may be vacated or modified
prior to or in conjunction with a final decree on a
showing by either party of facts necessary for vacation
or modification. Temporary orders terminate when the
final judgment on all issues, except attorney fees and
costs, is rendered or when the action is dismissed.
* * *
Neither provision speaks directly to the question of the
viability of such temporary orders in the event of the death of
one of the spouses to the divorce proceeding.
Petitioner correctly asserts that in Oklahoma, the death of
a spouse, before entry of a final divorce decree, generally
terminates the cause of action. In Pellow v. Pellow, 714 P.2d
593 (Okla. 1985), the Supreme Court of Oklahoma, the State’s
highest court, held in pertinent part:
A cause of action for a divorce is purely
personal, and it has been held that such a cause of
action terminates on the death of either spouse before
the entry of the final decree. In effect, the trial
court is deprived of its jurisdiction. If, on the
other hand, the trial court has entered a decree, it
has been held that the death of a spouse does not
affect the matter.
Id. at 597 (emphasis added)(citing Mabry v. Baird, 203 Okla. 212,
219 P.2d 234 (1950)).
Where a spouse in a divorce action dies after entry of a
final divorce decree, however, the action generally is
unaffected. For example, in Mabry v. Baird, supra, the trial
court had entered a final divorce decree reserving the matter of
the wife’s claim for attorney’s fees for further hearing. The
wife died before the court held its further hearing on the issue
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Last modified: May 25, 2011