UPDATE ON BIFURCATION
© 1998 National Legal Research Group, Inc.
The practice of bifurcation granting a divorce while reserving economic issues for later proceedings has several advantages: It can accelerate the end of a bad marriage and allow the parties to get a fresh start more quickly, and it prevents one spouse from holding the other's personal life hostage to economic demands. On the down side, bifurcation can result in two trials rather than one, and it can slow down the resolution of economic issues by removing an important incentive for settlement. See generally Wolk v. Wolk, 318 Pa. Super. 311, 464 A.2d 1359 (1983).
Must a trial court make its equitable distribution award at the same time the divorce or dissolution decree is entered? Oddly, only a few states have a statutory provision that directly addresses this important question. Part I of this article discusses the question of a trial court's authority to bifurcate the divorce and property division issues.
Assuming that bifurcation is not off-limits in general, a trial court faced with a motion for bifurcation must decide whether to grant it under the circumstances of the particular case. Part II discusses the considerations that bear on a trial court's decision about bifurcation, and the different standards that courts apply.
May the bifurcation decision be appealed? What if an order granting bifurcation is reversed on appeal? Part III looks at these procedural questions surrounding the question of bifurcation.
I. Authority To Bifurcate Proceedings
Statutory Provisions. Most state statutes do not directly address the question of bifurcation, but some expressly restrict or regulate the practice.
Alaska appears to have the most detailed provisions. Alaska Stat. 25.24.160 (Michie 1996) permits the court in a divorce action to divide the parties' property "at any time after the judgment," but if one party expressly submits the issue of property division and does not withdraw it before judgment, the court may not reserve the issue unless the conditions specified in 25.24.155 are met. That section precludes bifurcation unless each party expressly agrees or the moving party shows good cause and the court finds that the interests of the opposing party will not be jeopardized. The motion may not be granted if the court finds that it would
(1) put the opposing party's interests substantially at risk due to the death of the other party before a final disposition of the marital property;
Alaska Stat. 25.24.155(b).
(2) diminish the ability of the party opposing the motion to protect the value of assets not in the party's control;
(3) not be in the best interests of each minor child whose custody would remain unresolved if the motion were granted;
(4) have adverse tax consequences for the opposing party; or
(5) have adverse consequences on the opposing party's ability to maintain existing health insurance coverage.
Other examples of statutes regulating bifurcation include Colo. Rev. Stat. 14-10-106(b)(1) (1997) (permitting bifurcation when "necessary in the best interests of the parties"); Md. Code Ann., Fam. Law 8-203(a) (1991) (requiring property division order to be made within 90 days of the divorce decree unless both parties consent to further delay); and Va. Code Ann. 107.3(A) (Michie 1995) (allowing bifurcation on "the motion of either party . . . when the court determines that such action is clearly necessary necessary.
Court rules in some states regulate or restrict the practice of bifurcation. For example, a Michigan court rule expressly provides that a judgment of divorce must include a determination of the parties' property rights. Mich. Ct. R. 3.211(B)(3) (1998). This Rule has been held to preclude a bifurcated divorce despite permissive language in the property division statute which might indicate otherwise. Yeo v. Yeo, 214 Mich. App. 598, 543 N.W.2d 62 (1995).
In New Jersey, a 1979 directive of the state's high court prohibits bifurcation in family actions except in the most unusual and extenuating circumstances. Frankel v. Frankel, 274 N.J. Super. 585, 644 A.2d 1132 (App. Div. 1994).
Case Law Precluding Bifurcation. Courts in several jurisdictions have interpreted their state statutes to preclude bifurcation as a matter of law.
The Nebraska Supreme Court held that all issues between divorcing parties must be determined at the time of dissolution, so any attempt to retain jurisdiction to address property rights at a later date is invalid. Kimball v. Kimball, 228 Neb. 702, 424 N.W.2d 122 (1988). Under Humphrey v. Humphrey, 214 Neb. 664, 340 N.W.2d 381 (1983), the court noted, the practice of bifurcating a marriage dissolution case in any manner, and with any time lag, was expressly disapproved. "Whatever personal convenience a court may confer on parties by granting an immediate dissolution while retaining property jurisdiction cannot be worth the difficulties and problems to which the trial court is exposing the litigants," the court in Humphrey declared. 340 N.W.2d at 383.
The Arizona Supreme Court also held that the use of separate judgments to resolve issues of marriage dissolution and property distribution is error. Porter v. Estate of Pigg, 175 Ariz. 303, 856 P.2d 796 (1993) (en banc); accord Brighton v. Superior Court, 22 Ariz. App. 291, 526 P.2d 1089 (1974) (holding that piecemeal litigation should not be encouraged, and that if dissolution of marital status were allowed prior to resolution of other issues, litigation would be fostered rather than deterred).
Likewise, a Texas appeals court expressly disapproved the practice of bifurcating proceedings, because of concern that it causes protracted litigation. Adam v. Stewart, 552 S.W.2d 536 (Tex. Civ. App. 1977).
A Michigan appeals court held that bifurcation is improper in view of a Michigan court rule which expressly provides that a divorce judgment must include a determination of the parties' property rights. Compliance with the court rule ensures that cases are not tried piecemeal, subjecting the parties to a multiplicity of orders that could be appealed, the court explained. Yeo v. Yeo.
Recent decisions by the Third Department of New York's Appellate Division have held that a divorce decree is nonbinding and without legal effect if it fails to make an award of equitable distribution. See Busa v. Busa, 196 A.D.2d 267, 609 N.Y.S.2d 452 (1994); Sullivan v. Sullivan, 174 A.D.2d 862, 571 N.Y.S.2d 154 (1991); Garcia v. Garcia, 178 A.D.2d 683, 577 N.Y.S.2d 156 (1991). This view was rejected by the Fourth Department in Zack v. Zack, 183 A.D.2d 382, 590 N.Y.S.2d 632 (1992). See also In re Johnson, 172 Misc. 2d 684, 658 N.Y.S.2d 780 (Sup. Ct. 1997) (adopting holding of Zack).
Case Law Permitting Bifurcation. Courts in most jurisdictions have determined that their state statutes do not preclude bifurcation.
For example, a North Carolina appeals court held that severance of a divorce claim from an equitable distribution claim does not contravene the state's equitable distribution statute or prejudice substantial rights. Sharp v. Sharp, 84 N.C. App. 128, 351 S.E.2d 799 (1987). Along the same lines, a Kansas appeals court held that bifurcation is permitted in the discretion of the trial judge. See In re Marriage of Wade, 20 Kan. App. 2d 159, 884 P.2d 736 (1994) (bifurcation is within trial court's discretion).
Consent of Parties. Even if a state statute or case law generally prohibits bifurcation, the parties may nevertheless usually be permitted to split the proceedings upon their mutual request. For example, in Forrest v. Forrest, 279 Ark. 115, 649 S.W.2d 173 (1983), the Arkansas Supreme Court affirmed the trial court's order for a "limited divorce" despite statutory language mandating that the marital property be distributed at the time a divorce decree is entered. No reason existed to bar the trial court from postponing the division of property until a later date if the parties wanted bifurcation and specifically agreed to it, the court reasoned.
Similarly, in Ellet v. Ellet, 94 Nev. 34, 573 P.2d 1179 (1978), the Nevada Supreme Court apparently allowed the parties to agree to bifurcation notwithstanding the fact that the court had, only one year earlier, expressly stated that trial courts must contemporaneously dispose of property at the time of the divorce. But, in Yeo v. Yeo, a Michigan appeals court held that the parties' stipulation to bifurcation was of no consequence. Michigan law does not permit bifurcation, and a stipulation by the parties regarding a matter of law was not binding on the court, the court declared.
II. To Bifurcate Or Not?
Although courts have the power in most jurisdictions to bifurcate the divorce from the economic issues, there is wide disagreement about the standards for determining when bifurcation should be granted.
Bifurcation Generally Favored or Approved. A minority view generally approves split proceedings or even favors bifurcation in the absence of particularized, compelling reasons to the contrary. Under this approach, bifurcation will be granted for almost any reason, such as possible tax advantages, fewer constraints in social and financial matters, or the fact that the property issues will require more discovery and a more lengthy trial.
For example, in Gionis v. Superior Court, 202 Cal. App. 3d 786, 248 Cal. Rptr. 741 (1988), the California Court of Appeal held that a request for bifurcation does not have to be justified by a compelling showing of need, and that on the contrary a spouse opposing bifurcation must present compelling reasons for denial. Reviewing California case law, the court found that bifurcation was a favored procedure because it implemented the policy underlying no-fault dissolution. The court noted that the state's high court had endorsed the concept of bifurcation in these terms:
Severance of a personal relationship which the law has found to be unworkable and, as a result, injurious to the public welfare is not dependent upon final settlement of property disputes. Society will be little concerned if the parties engage in property litigation of however long duration; it will be much concerned if two people are forced to remain legally bound to one another when this status can do nothing but engender additional bitterness and unhappiness.
Hull v. Superior Court, 545 Cal. 2d 139, 5 Cal. Rptr. 1, 6 (1960).
Along the same lines, a Kansas appeals court held that bifurcation is permitted in the discretion of the trial judge. Bifurcation is a common practice in Kansas trial courts, the court noted. In re Marriage of Wade, 20 Kan. App. 2d 159, 884 P.2d 736 (1994).
Bifurcation Disfavored in Some Jurisdictions. Case law in a majority of states basically disfavors bifurcation and restricts its use to unusual circumstances where its advantages outweigh its disadvantages. See, e.g., Estate of Burford v. Burford, 935 P.2d 943 (Colo. 1997); Woods v. Woods, 610 So. 2d 71 (Fla. Dist. Ct. App. 1992); In re Marriage of Blount, 197 Ill. App. 3d 816, 555 N.E.2d 114 (1990); Frankel v. Frankel, 274 N.J. Super. 585, 644 A.2d 1132 (App. Div. 1994); Poltorak v. Blyakham, 225 A.D.2d 600, 638 N.Y.S.2d 787 (1996); Holst v. MacQueen, 184 W. Va. 620, 403 S.E.2d 22 (1991).
Bifurcation is generally disfavored, a New York appeals court explained, "because it raises the possibilities of economic coercion, two protracted proceedings, or delay in resolving the financial issues." Poltorak v. Blyakham, 638 N.Y.S.2d at 787. Likewise, a New Jersey court said that granting the husband an uncontested divorce without addressing the financial issues would benefit only him and not the court. "The granting of bifurcation would not serve the purpose of eliminating any trial time whatsoever, but would merely permit [the husband] to continue to be in control of the marital assets without the incentive to resolve all other issues." Leventhal v. Leventhal, 239 N.J. Super. 370, 571 A.2d 348, 352 (Ch. Div. 1989).
Obviously, bifurcation is not likely to be granted under the majority approach. The reasons that have been found insufficiently compelling include (1) a spouse's desire to remarry, Leventhal v. Leventhal; (2) a spouse's difficulty in performing social duties connected with his job, In re Marriage of Bogan, 116 Ill. 2d 72, 506 N.E.2d 1243 (1983); (3) calendar congestion that would delay the divorce, Leventhal v. Leventhal; (4) and the fact that the divorce could be granted quickly while the equitable distribution phase would be more complicated and protracted. Poltorak v. Blyakham.
Circumstances that have been held sufficient to justify bifurcation include a bankruptcy stay that prevents entry of judgment on economic issues that the parties have resolved, Frankel v. Frankel, and a spouse's ill health or advanced age that makes it possible he or she would die before the resolution of complex financial matters. Estate of Burford v. Burford; Culp v. Culp, 242 N.J. Super. 567, 577 A.2d 872 (Ch. Div. 1990).
Delay. If a spouse who is eager to get a divorce before resolving financial issues appears to be stalling on discovery matters, the trial court may deny bifurcation for fear that it would only result in further stalling. E.g., Fiorella v. Fiorella, 132 A.D.2d 643, 518 N.Y.S.2d 17 (1987). The trial court is more likely to grant bifurcation if the spouse who opposes it appears to be holding up resolution of the economic issues. See Holst v. MacQueen.
III. Procedural Issues
Right to Appeal. An order granting or denying a motion for bifurcation is interlocutory and thus not subject to appellate review. E.g., Beasley v. Beasley, 348 Pa. Super. 124, 501 A.2d 679 (1985); Nenninger v. Nenninger, 19 Va. App. 696, 454 S.E.2d 45 (1995). Challenging the propriety of bifurcation should be raised instead in an appeal from the divorce decree. In re Marriage of Cohn, 94 Ill. App. 3d 732, 419 N.E.2d 729 (1981), aff'd, 93 Ill. 2d 190, 443 N.E.2d 541 (1982); Mandia v. Mandia, 341 Pa. Super. 116, 491 A.2d 177 (1984).
Legal Effect of Improper Bifurcation. The majority view is that the improper or erroneous use of separate judgments to resolve marital status and property distribution does not make the judgments void. E.g., Porter v. Estate of Pigg, 175 Ariz. 303, 856 P.2d 796 (1993) (en banc); Lazarus v. Lazarus, 240 A.D.2d 544, 659 N.Y.S.2d 59 (1997); Christensen v. Christensen, 26 Va. App. 651, 496 S.E.2d 132 (1998).