A recent article in The Legal Intelligencer discussed a Pennsylvania case regarding the death of a spouse in the midst of divorce proceedings.  The existing statute states that in a case for which grounds for divorce have been established, but no divorce decree has been entered, the economic distributions will be determined in accordance with the divorce code as opposed to the estate and inheritance code (23 Pa.C.S.A §3323(d.1)).

After separating from her husband, Lillian Tosi filed for divorce including a claim for equitable distribution.  Her husband, John J. Tosi, attempted to file for economic claims, but did not file them correctly with the Prothonotary because he failed to file an answer and counterclaim to his wife’s divorce complaint.  Both spouses submitted affidavits of consent to the entry of a divorce decree, so grounds for divorce were established.  Shortly after submitting his affidavit, Mr. Tosi passed away.  The court granted Ms. Tosi a discontinuance of the divorce proceedings.  However, the late Mr. Tosi’s lawyer Robert Kizis filed a petition to strike the discontinuance.

The Court denied his petition, upholding Ms. Tosi’s discontinuance.  Kizis appealed the decision. On appeal, the Court ruled that 23 Pa.C.S.A §3323(d.1) does not require the surviving spouse to continue with equitable distribution, but it gives them an option to forgo further divorce proceedings.  Since Ms. Tosi was the plaintiff and Mr. Tosi, the defendant, failed to file counterclaims, she was within her rights to discontinue the divorce process even though grounds for divorce had been established. The Court also affirmed, based on the fact that the record from the trial court revealed that Kizis had not provided evidence to show prejudice would result from the discontinuance.

Divorce cases can be complex.  If you or a family member is considering a divorce, please contact the dedicated family law attorneys of Petrelli Previtera, LLC