Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)

Sometimes It Is Better To Exit a Marriage as an Heir Rather Than As an “Ex”

I can’t tell you how many times a client has said in the midst of a divorce how much simpler life would be if his or her spouse would just pass away. Well, last year in Jackson County, Missouri, a woman’s husband did just that at the conclusion of their divorce trial, when this woman decided she didn’t want a divorce after all.


What gives? Quite simply, she would fare much better financially as his widow than as his “ex”. Before explaining the pecuniary motivation for her sudden reversal, let’s delve a little bit into a very interesting case.


Mary Ruth married James Henry McMilian in August 1993. They had no children before separating almost 12 years later in June 2005. Not long after, Mary Ruth filed for divorce.


Mary and James couldn’t settle their case so it went to trial on February 10, 2006. As is typical, the judge did not issue a ruling at the trial’s conclusion, presumably so he could think through the property division and spousal maintenance. Over the next few days, the judge emailed and faxed both attorneys to communicate his thinking on these issues, and to ask Mary Ruth’s attorney to prepare a final judgment that incorporated his views on property and maintenance, to be approved by James Henry’s lawyer and then signed by the judge.


Importantly, neither the judge’s email nor fax indicated that he had ruled that the marriage between Mary and James had been dissolved, nor did any of his writings on the case, nor was their evidence that he had made any statements to that effect.


On February 15, 2006, five days after the trial, James Henry died, still married to Mary Ruth, or so she believed.


On March 1st, Mary Ruth filed a Motion to Abate, saying that the court no longer had jurisdiction since one of the parties had passed away, and asserting that absent a ruling by the judge dissolving her marriage, she was now a widow and not an ex-wife.


The judge responded by issuing a “Judgment Entry and Order Nunc Pro Tunc”, in which the judge admits that he had failed include “a finding that the marriage…had been dissolved”, but was now correcting that omission in the “order nunc pro tunc”. In other words, he was making Mary Ruth a divorcee retroactively.


Mary would have none of that and neither would the Missouri Court of Appeals to whom she took her case. As Mary Ruth argued, it is well settled law in Missouri that a marriage is not dissolved until the judge says so, whether in writing or verbally for the record.


The Appellant Court also concluded that the judge’s use of a Nunc Pro Tunc Order to dissolve the marriage was improper. As the Court noted, a Nunc Pro Tunc is to be used to correct clerical errors in a ruling already issued and not to be the ruling itself.


Finally, it’s worth noting that it was James Henry’s estate that opposed Mary Ruth in her efforts to be declared a widow. Although I do not know the specific economics here, this is not surprising since Mary would likely acquire much larger portion of James’s estate as his surviving spouse than in a divorce decree.


Presumably, she was entitled to the full value of the retirement benefits due a surviving spouse, while as his ex-wife, she may have been limited to only a portion of the retirement plan accrued during the marriage. Further, as his widow, it is likely that she will inherit all of her husband’s separate property as well as all of what they owned jointly. If the marriage had been dissolved, her likely allocation would have been 50% of the jointly owned assets and none of those that her husband owned solely.