Pending a divorce action brought by a wife she was killed. Does her death at the hands of the husband abate her claim for equitable distribution of property? This is a novel question presented by the husband's motion to have the divorce action and all her requests for relief abated, contending this court has lost all jurisdiction.
The wife's verified complaint for divorce was based on extreme cruelty. The complaint also prayed for custody, alimony, child support, equitable distribution, counsel fees and costs. There are four children of the marriage; three continue to live in the marital home. The oldest child is in a mental institution. It is nowhere stated whether the commitment was voluntary or involuntary. The papers on file do not indicate that any of the children are emancipated. The husband is in jail charged with the criminal offense.
Divorce, as well as alimony, abates with the death of plaintiff. Sutphen v. Sutphen , 103 N.J. Eq. 203 (Ch. 1928). These are personal rights and die with her. That part of Sutphen which abated her counsel fees and costs has been overruled by Williams v. Williams , 59 N.J. 229, 234 (1971). Issues of custody and support of children do not abate, as I will remark upon later. I therefore grant defendant's motion as to the divorce and alimony. I will now speak to the remaining issues.
The parties were married for 24 years. Discovery has not yet been taken. The papers show that, at the least, there is a marital home; a drug store operated by the husband -- recently sold with the approval of this court, the net proceeds of which have been ordered held in escrow pending further orders; additional cash amounts, both disclosed and undisclosed, valued in excess of $100,000. The husband does not contend that any of these assets were not acquired during the marriage.
The novel question is whether, by reason of the deceased wife's inability to pursue her divorce action, her estate and her heirs should be deprived of her rightful entitlement to equitable distribution.
The alimony section of the Divorce Act, N.J.S.A. 2A:34-23 provides, among other things:
In all actions where a judgment of divorce is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage. [Emphasis supplied]
The wife's cause of action alleged extreme cruelty. The complaint particularized acts and conduct of the husband which, if true, carried the probability of success if the case had proceeded to final hearing. The complaint was verified. R. 4:79-7 provides that
All elements of a claim for divorce or nullity may be proved without corroboration.
Thus, we have before us a verified complaint which presented a prima facie case for divorce. If the wife had lived and secured her divorce, the court would have dealt with the assets and property of the parties, allocated those in an equitable manner between them and then would have considered the matters of ...