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-Bifurcation

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What is a Bifurcation?

It can take many months, even several years, for a dissolution to wind its way through the courts. Faced with his fact, many spouses want to terminate the marriage quickly, even if the other issues in the case have not been settled. There might also be situations in which it makes sense to have a separate trial of a particular issue.

In both of those situations, the court will order that the trial is to be “bifurcated.” This means either that the marital status is terminated and the parties are restored to their single status or a separate trial is to be held concerning a specific issue.

Bifurcation to Terminate the Marital Status

Bifurcations are usually requested because one or both of the spouses want to remarry. They are also sought because one or both of them want to file their tax returns for the current year as a "single" taxpayer.

The tax laws state that a person can file as a "single" person as long as his or her marital status was terminated before the end of the year. Thus, even if the marital status is ended on December 31st, the taxpayer can file as a "single" person for the entire year.

This can be significant, particularly for the person who is paying spousal or "family" support. Payments of spousal and family support are 100% deductible for the person who is ordered to make those payments. Conversely, spousal and family support payments must be reported as income by the person receiving them. Income tax laws provide that these support payments are not deductible if the spouses file a joint tax return.

If you have been paying spousal or family support pursuant to a court order or written agreement you should immediately talk to your accountant or tax preparer to determine if it would be to your advantage to file as a single person for this year.

Bifurcation of Trial Issues

The court can also bifurcate the trial of certain issues. For example, where there is a family business that was owned before the marriage, the spouses might disagree as to whether it is community property or the separate property and what it is worth. If the business is ultimately found to be the separate property of the spouse who started it, the value of the business would be irrelevant. In such a case, the judge might order that there will be a bifurcated trial to first determine if the business is community property or separate property. If the result of that trial is a finding that the business is community property, then there would be a trial on the value to be placed on it.

Requirements

The law provides that the marital status can be terminated not less than six months from when the Respondent was served with the Petition for Dissolution. So, only cases in which the Respondent was served before July 1st can be bifurcated during that year.

Procedure to Obtain Bifurcation

Most courts require the filing of a motion for bifurcation, although some courts allow it to be done simply by filing a written stipulation. If a motion is required, the attorney must prepare appropriate court papers, which must then be filed with copies mailed to the spouse or his/her attorney. Approximately 3-6 weeks after the motion is filed, the requesting spouse and his/her attorney have to appear before the judge, who will almost always grant the request.

Conditions for Bifurcation of the Marital Status

While the granting of a request for bifurcation of the marital status is virtually automatic, there are some prerequisites and conditions that must be followed by the requesting party. Initially, the party requesting bifurcation must serve his or her preliminary declaration of disclosure on the other spouse before the request for bifurcation is filed.

The judge will usually impose certain "conditions" on the granting of a bifurcation. These include: (1) The obligation to reimburse opposing party for any tax consequences or loss of right to claim probate homestead or family allowance; (2) The employee-spouse must maintain existing medical insurance for the other spouse; (3) The employee-spouse must indemnify the other spouse for loss of pension death benefits. In addition, the law requires that, before a bifurcation is granted, the pension plans of the spouses must be joined in the dissolution case.

The condition that existing medial insurance be maintained is particularly significant. Under that condition, the spouse requesting bifurcation must maintain existing medical insurance for the other spouse. If such coverage is no longer available, the requesting spouse must purchase medical insurance for the spouse that provides coverage that is comparable to the existing coverage. If such insurance is not available, the requesting spouse must pay for all medical bills incurred by the other spouse that would have been paid by the existing medical coverage.

Immediate Action Required

As discussed above, a person can file as a “single” taxpayer for the entire year, as long as the marital status was terminated sometime in that year, even as late as December 31st. This is why there is usually a flood of bifurcation motions filed at the end of the year. To be assured that the clerk places a bifurcation motion on the court’s calendar before the end of the year, the motion should be filed not later than November 15th. So, clients should inform their attorneys that they want their cases bifurcated by not later than November 1st. This should provide the attorney with sufficient time to prepare the court papers that have to be filed.


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