With the age of baby boomers continuing to increase, the issue of incompetency and the abatement of divorce or litigation of equitable distribution post the death of a divorced litigant is gaining more attention by family law practitioners.

Historically, prior to 2005, if either party to a divorce action died, Pennsylvania courts held that the divorce action abated. In other words, the divorce case died with the individual pending the issuance of a divorce decree. However, in 2005, the Pennsylvania Divorce Code was amended and provided an exception to abatement of divorce actions upon death. The exception is that if grounds for divorce are established prior to a party dying, though no divorce decree will granted posthumously, the economic rights and obligations of the parties are determined under the divorce code rather than the elective share provision of the probate code.

In the case Berry v. Berry, ___ A.3d ___, 2018 Pa. Super. 276 (Oct. 11), the issue of incompetency, death of a litigant, and the intersection thereof with the exception to the abatement issue in divorce, was addressed. In Berry v. Berry, both the husband and wife suffered from dementia. According to the opinion, the children of the parties (a daughter for the mother and a son for the father), served as each parties' power of attorney. Further, each side had an attorney of law representing him and her. The wife filed a divorce complaint against the husband and the husband filed a counterclaim seeking divorce against the wife. According to the opinion, the wife's action was based upon, among other things, the husband's failure to take his medication related to his dementia. However, the wife later had a change of heart and withdrew her divorce action. The issue of the parties' dementia and competency was brought to the court's attention in both pretrial memoranda and other modes. At the hearing, the trial court addressed the issue by stating that: “the court has been of the opinion throughout this proceeding that the power of attorney issue is an orphans' court issue, not a divorce issue. And, if anything needs to be done, it needs to be filed in the orphans' court. I'm not going to take any action regarding the filing of the power of attorney for the wife in this matter… .” The court then held an equitable distribution hearing and essentially divided the estate equally. The wife thereafter appealed the decision of the court, once the divorce decree was entered, raising the single question: “was the equitable distribution scheme of the lower court fair in accordance with the law?” During the appeal, the husband passed away. It is to be noted that the wife was in her 80s and husband was in his 90s during the litigation in this matter.

The Superior Court went into great detail as to whether it may sua sponte address the issue of the competency of the parties during the litigation where the issue of competency was not raised on appeal. Generally, issues not raised on appeal are waived. According to the opinion: “although our procedural disposition is unusual, our Supreme Court has announced our inherent authority, in the interest of justice, to raise the issue of the parties' competency sua sponte.”

In the Berry case, the Superior Court held that Pennsylvania law does not allow an incompetent to bring a divorce action “without the court confirming whether the incompetent retains the mental capacity to make reasonable decisions concerning his person, his understanding of the nature of a divorce action and his desire to maintain this action.” The Superior Court further stated that: “a power of attorney cannot prosecute, nor defend, a divorce action on behalf of an incompetent principal. That role is reserved exclusively for a court-appointed guardian or guardian ad litem.” The Superior Court stated that had the husband not died during the appeal, the case would have been remanded “for the trial court to conduct a more thorough hearing on husband's capacity to determine … whether the husband possessed the mental capacity to make reasonable decisions concerning his person, his understanding of the nature of a divorce action, and his unequivocal desire to maintain this action.” In the Berry case, the trial court did not conduct a thorough hearing regarding capacity. By reading this case, if the issue of competency and capacity are raised, the court shall first conduct a hearing to determine whether a guardian or guardian ad litem should be appointed. That did not occur in this case.

That brings us to the issue of abatement. In this case, the husband filed his 3301(d) affidavit. Therefore, grounds for divorce existed. If capacity were not an issue, the divorce would not have abated because of the issue of the husband's death. According to the Superior Court: “but, because we have determined … that the outstanding questions of the husband's incompetency and failure to appoint a guarding ad litem voids the divorce decree, we must conclude that the statutory exception is inapplicable and that husband's death abates the divorce action.” The Superior Court further reasoned that because husband died before the court could determine his competency; the court could not rely on his 3301(d) Affidavit to process the parties' economic rights and obligations under the divorce code.

This case is extremely important for the bench and the bar. It is important for the bench because it provides a road map and detailed discussion regarding competency and divorce proceedings and the requirement for a hearing and appointment of a guardian or a guardian ad litem if necessary. Further, it is helpful for the family law practitioner who is now seeing more “graying divorces.”

Michael E. Bertin is a partner at the law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-author of the book “Pennsylvania Child Custody Law, Practice, and Procedure.” He is a Fellow of the American Academy of Matrimonial Lawyers, a former chair of the family law section of the Philadelphia Bar Association, the current co-chair of its custody committee, and the chair elect of the family law section of the Pennsylvania Bar Association. He can be reached at 215-665-3280 or [email protected].