Jane Gilbert - Page 11




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          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.                              




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