Eighteen years ago, I had a child out of wedlock. The father, whom I’ll call Joe, and I were both young. He never really got involved but gave me money, $ 2,000 a month and more when I asked him. He also always sent birthday and Christmas gifts. We had always talked about sharing university expenses equally when the time came.
Joe got married two years ago and last year had a baby with his wife. She always resented the money he sent me, and when their child was born, she insisted that he stop supporting our daughter. She is applying to college and I need this money even more now. After much deliberation, I filed a paternity complaint for a child support order. He requested a paternity test and if I understood correctly he went ahead with the test.
I haven’t seen the test results but I know he’s the father – Joe was my first and only boyfriend at the time. Last week Joe was killed in a car accident. His wife immediately filed a death certificate and a motion to dismiss my complaint. There is a hearing scheduled in two weeks and I am concerned. What should I be prepared to say to the judge?
While the death of a party ends a pending divorce, this is not necessarily the case with an annulment or paternity action. In the event of an annulment, a spouse who is deemed not to be a spouse could not inherit if they were never married. And for a paternity action, if the test confirms paternity, the child should have the right to make a claim under the deceased’s estate. Child support does not end when the debtor dies.
Ask the judge to wait for the lab results and, assuming paternity is established, to dismiss the motion to dismiss. Let the judge know that you intend to make a discovery of Joe’s estate so that you can then apply for child support and academic contributions to his estate. Joe may have a will that includes your child. If your child is not specifically excluded from the will, even if she is not named, she will fall under the catch-all definition of child of the deceased and may therefore make a claim.
If the judge seems inclined to allow the motion to dismiss, ask him or her to stay the case and report the matter to the appeals court for decision rather than simply dismissing the case. Remind the judge that rule 64 allows for a reservation and a report and that if you have to file a full appeal, this could give the wife time to “protect” Joe’s assets from creditors such as your daughter, thus nullifying her. college dreams.