The Zombie Apocalypse Texas Divorce Guide
Your wedding vows said “Til Death Do Us Part”,
But what if your spouse becomes undead in the Zombie **Apocalypse?
**For the purposes of this article I will use the term “Zombie” to refer to a human being who has died and become a reanimated corpse. I use this term merely for the sake of brevity and public accessibility. No disrespect or over-familiarity to Undead Americans is intended. Recently, The Centers for Disease Control and Prevention released the government's Preparedness 101 Zombie Apocalypse Guide. We felt in an over abundance of caution that the Texas public should also have The Zombie Apocalypse Texas Divorce Guide.
Are you still married?
Those of us who are married and among the living probably remember that during our wedding ceremony, we pledged to love, honor and cherish our spouse for as long as we both shall live. If one’s spouse dies and stays dead, this seems clear cut. At this point the surviving spouse is a widow or widower and no one would look askance about that person getting remarried and moving on with his or her, well… life.
It is generally accepted that Zombies die prior to their reanimation (more on this topic below). So this puts an interesting wrinkle on the marriage vow. If your spouse dies, but doesn’t stay that way, did your marriage actually end when he/she died?
Texas law seems to presume without explicitly saying so that marriage ends on death. Nowhere in the Texas Family Code does it actually say, “at the death of either spouse, the marriage is no longer in existence.” That being said, there are some points of law that make it fairly clear that marriage ends on a spouse’s death.
The Dallas Court of Appeals has stated that, “The general rule in Texas is that a cause of action for divorce is purely personal and becomes moot and abates upon the death of either spouse. “ McKenzie v. McKenzie, 667 S.W.2d 568, 571-72 (Tex.App.--Dallas 1984, no writ) That a divorce becomes “moot” upon the death of a spouse is a pretty clear indication that the law assumes that the marriage is over. If the marriage were still in full force and effect, the divorce would certainly not be a moot point.
Another clue comes from the probate code, particularly those provisions dealing with intestate succession. “Intestate” means that a person died without a valid will disposing of his or her property. Section 37 of the Texas Probate Code states, “whenever a person dies intestate, all of his estate shall vest immediately in his heirs at law…” Section 45 of the Probate Code goes on to detail how the community property estate is to be distributed. The implication of immediately distributing the community estate is that there is no more community estate or community property going forward, which in turn implies that there is no marriage.
Is my spouse actually dead?
According to the Texas Health and Safety Code, Sec. 671.001:
“(a) A person is dead when, according to ordinary standards of medical practice, there is irreversible cessation of the person's spontaneous respiratory and circulatory functions.
(b) If artificial means of support preclude a determination that a person's spontaneous respiratory and circulatory functions have ceased, the person is dead when, in the announced opinion of a physician, according to ordinary standards of medical practice, there is irreversible cessation of all spontaneous brain function. Death occurs when the relevant functions cease.”
By this definition, yes – your spouse is dead. Let’s look at the facts: your spouse stopped breathing and his/her heart stopped beating. Just because they started back up again doesn’t take that fact away. Keep this in mind – the mystical powers of evil which reanimated your spouse’s corpse are OUTSIDE the ordinary standards of medical practice! Those powers do not “count” in the same way that, say, a life support machine that keeps your spouse alive would count. The “relevant functions” have ceased, and it took sometime far beyond the “ordinary standards of medical practice” to make them recommence.
Another frequently asked question in regard to Zombie spouses is, “Can I have my Zombie spouse declared legally dead?” Generally speaking the answer is, NO. Under the Texas Civil Practice and Remedies Code, Chapter 133, any person absenting himself for seven successive years shall be presumed dead unless it is proved that the person was alive within the seven-year period. This is what is actually meant by “legally dead”. The problem with Zombies is generally not that they are missing, but that you know exactly where they are. Typically right behind you in a dark room.
If, however, your spouse has gone missing while in a High Zombie Area, and you have not seen him or her in many years, this provision may apply to you. While technically what you would be asserting is that your spouse is “Presumed Zombie”, you would still file for a “Presumption of Death” under the Civil Practice and Remedies Code.
I was in the middle of a divorce when my spouse became a Zombie. Can I finish my divorce?
The short answer is, “No.” Under Texas case law, death of a party abates a divorce action and its incidental inquiries of property rights and child custody. The proper procedural disposition of a divorce action when one of the parties dies is dismissal. Whatley v. Bacon, 649 S.W.2d 297, 299 (Tex.1983).
Under certain limited circumstances, however, you may still be able to get a judgment against your Zombie spouse. When a trial court has rendered judgment on the merits in a divorce case, the cause does not abate when a party dies, and the cause cannot be dismissed. Novotny v. Novotny, 665 S.W.2d 171, 173-74 (Tex.App.--Houston [1st Dist.] 1983, writ dism'd). Furthermore, when a party to a divorce dies during the pendency of appeal, the appeal becomes moot, unless the divorce decree significantly affects the property rights of the parties. Dunn v. Dunn, 439 S.W.2d 830, 833-34 (Tex.1969).
The El Paso Court of Appeals put it this way:
“In summary, the cases above dictate the relationship of the judgment and the underlying cause in the following manner: (1) until judgment on the merits is rendered, a death of the party abates the cause and it must be dismissed; (2) after judgment is rendered, the cause does not abate upon the death of the party, but the judgment can be modified or withdrawn, or a new trial granted, during the period of the trial court's plenary power; and (3) the court of appeals has jurisdiction of the appeal after the death of a party if the divorce decree substantially affects the parties' property rights. “ Palomino v. Palomino 960 S.W.2d 899 (Tex.App. —El Paso 1997).
So, unless a judgment has actually be rendered in your divorce case, you probably cannot finish your divorce. But, as stated above – your marriage is dissolved by death anyway.
Do I have to let my Zombie ex-spouse visit our children?
No. In fact, in this situation it is highly advisable that you do not. In Texas Family Law, the standard by which all child custody determinations are made is “The Best Interest of the Child.” Most judges agree that the best interest of children is served by protecting them from being attacked by the Undead. It should be noted that the American Civil Liberties Union is currently prosecuting a class action anti-discrimination suit on behalf of Undead Americans on this subject. However, pending a ruling by the Supreme Court otherwise, you are more than likely safe to withhold access to your children from your Zombie spouse.
You should also seriously consider applying for a Protective Order for yourself and your children. Under Texas Family Code, Sec. 81.001. “A court shall render a protective order…if the court finds that family violence has occurred and is likely to occur in the future.”
Family Violence is defined as “an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.” You spouse, by crawling out of the grave as a Zombie, has committed an act that is a threat that places you and your children (as well as the rest of the community) in fear of imminent physical harm.
In most counties, you will need to go directly to this District Attorney’s office to apply for a protective order. There is generally no application or filing fee if you apply for your protective order this way. You can, of course, retain your own legal counsel to file your application for a protective order, however, you will incur your attorney’s legal fees in doing so.
Will my Zombie ex-spouse still have to pay child support?
More than likely - Yes. Under Texas law, Child support is an obligation to the child and survives the death of the “obligor”. The Obligor is the person who is ordered to pay child support. In fact, when child support obligor dies, the amount of child support remaining unpaid is accelerated. This means that the entire amount becomes due and payable on the date of death. See Texas Family Code Sec. 154.015.
The Family Code has a system for determining the amount of that total unpaid balance. Here’s what the Court will look at:
“(1) the present value of the total amount of monthly periodic child support payments that would become due between the month in which the obligor dies and the month in which the child turns 18 years of age, based on the amount of the periodic monthly child support payments under the child support order in effect on the date of the obligor's death;
(2) the present value of the total amount of health insurance premiums payable for the benefit of the child from the month in which the obligor dies until the month in which the child turns 18 years of age, based on the cost of health insurance for the child ordered to be paid on the date of the obligor's death;
(3) in the case of a disabled child under 18 years of age or an adult disabled child, an amount to be determined by the court under Section 154.306;
(4) the nature and amount of any benefit to which the child would be entitled as a result of the obligor's death, including life insurance proceeds, annuity payments, trust distributions, social security death benefits, and retirement survivor benefits; and
(5) any other financial resource available for the support of the child.”
If, after considering all the above factors, the court finds that the child support obligation has been satisfied, the will order that there is no more child support due. If the court finds, after reviewing these factors, that child support is still owed, the court shall render a judgment in favor of the non-Zombie parent, for the benefit of the child, in the amount of the unpaid child support obligation.
Be warned, though - if money the Zombie parent has already paid to the non-Zombie parent for the benefit of the child exceeds the amount of the unpaid child support obligation remaining at the time of the obligor's death, the non-Zombie parent may actually have to pay back the excess to the Zombie’s estate.
Who owns our marital property now that my spouse is a Zombie?
Since the Zombie spouse is legally considered a dead person, any property that he or she owned will pass in accordance with the Probate Code. It is another assumed, but not expressly addressed, legal point that dead people cannot own property. In fact, it is a fundamental purpose of the existence of the Texas Probate Code to remove title to property from the names of dead persons and transfer it to the living.
A full discussion of all issues involved in the disbursement of the estate of a Zombie is beyond the scope of this article. Suffice it to say, the battle that you may have had (or were having) in the divorce court will now be waged in the Probate Court. Keep an eye out (Zombie pun intended) for The Zombie Apocalypse Probate Guide – coming soon from The Wright Firm! For information on Texas Divorce and Probate Law Contact The Wright Firm, L.L.P. at 972-353-4600 or visit us on the web at www.thewrightlawyers.com
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