Eighteen years ago, I had a child out of wedlock. The father, who I will call Joe, and I were both young. He was never really involved but did give me money, $2,000 per month and extra when I asked. He also always sent birthday and Christmas gifts. We had always talked about equally sharing her college expenses when the time came.
Joe married two years ago and last year had a baby with his wife. She has always resented the money he sent me, and when their child was born, she insisted he stop supporting our daughter. She is applying to college and I need that money even more now. After much deliberation, I filed a paternity complaint to get a child support order. He requested a paternity test and, as I understand it, went forward with the testing.
I have not seen the test results but I know he is the father — Joe was my first and only boyfriend back then. Last week, Joe was killed in a car crash. His wife immediately filed a death certificate and motion to dismiss my complaint. There is a hearing scheduled in two weeks and I am worried. What should I be prepared to say to the judge?
While the death of a party terminates a pending divorce, that is not necessarily true of either an annulment or paternity action. In the instance of an annulment, a spouse who is deemed not to be a spouse would not be able to inherit if never married. And for a paternity action, if the test confirms paternity, the child should be entitled to make a claim under the decedent’s estate. Child support does not end on the death of the obligor.
Ask the judge to wait for the lab results and, assuming paternity is established, to then deny the motion to dismiss. Tell the judge of your intention to conduct discovery into Joe’s estate so you can then ask for child support and college contributions from his estate. It may be Joe had 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 catchall definition of child of the deceased and thus be entitled to make a claim.
If the judge seems inclined to allow the motion to dismiss, ask the judge to stay the case and report the issue to the appeals court for determination rather than just dismiss the case. Remind the judge that Rule 64 permits a reservation and report and if you are required to file a full appeal, it might give the wife time to “protect” Joe’s assets from creditors such as your daughter, thus quashing her college dreams.