- 11 - the payee custodial spouse died, because the statute and caselaw grant courts continuing jurisdiction over support matters and require a petition to modify or terminate support payments. See Edelstein v. Edelstein, 582 A.2d 1074, 1077 (Pa. Super. Ct. 1990). In Gonzales v. Commissioner, T.C. Memo. 1999-332, we held (applying New Jersey law) that, when a separation instrument is modifiable, the noncustodial payor spouse could have remained liable to pay support under the separation agreement after the payee spouse’s death. Mr. Hawley contends that the doctrine of abatement applies to the instant cases, and thus the unallocated support order would terminate upon Ms. Gilbert’s death. Before the entry of divorce in Pennsylvania, divorce actions abate upon the death of one of the parties. Haviland v. Haviland, 481 A.2d 1355, 1356 (Pa. Super Ct. 1984) (citing Matuszek v. Matuszek, 52 A.2d 381 (Pa. Super. Ct. 1947)).10 Economic claims for equitable 10Haviland v. Haviland, 481 A.2d 1355 (Pa. Super Ct. 1984), held that the Pa. Divorce Code applies in pari materia with the Probate Code, and the Divorce Code applies only to living spouses. Id. at 1357. However, in dicta, Teribery v. Teribery, 516 A.2d 33, 37-38 (Pa. Super. Ct. 1986), stated that “Should either party die or become disabled, for example, a petition for modification can be filed to reflect changed circumstances.” A court need not consider all contingencies in ordering unallocated support, because it may consider a change in circumstances, such as death, when raised by petition. Edelstein v. Edelstein, 582 A.2d 1074, 1077 (Pa. Super. Ct. 1990) (citing Teribery v. Teribery, supra). Under those cases, unallocated support payments may continue after the death of the payee custodial spouse, at least temporarily, until there has been a petition filed to modify the unallocated support order.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: May 25, 2011