What is a bifurcated divorce?
A bifurcated divorce is a process where the divorce decree is granted before
the economic issues associated with the divorce are resolved. Regular
or simple divorce cases are generally best resolved all at once. But complex
economic issues in a divorce can sometimes take years to resolve. For
those cases, a bifurcated divorce is an option.
Under Pennsylvania law, once grounds for divorce have been established,
the party seeking a bifurcated divorce has the burden of proving "compelling
circumstances and sufficient economic protection". This article will
analyze all 3 requirements for a bifurcated divorce. The Court will analyze
these 3 requirements on a case-by-case basis. Alternatively, the parties
can always consent to a bifurcated divorce.
Establishing grounds for a divorce.
To receive a bifurcated divorce, grounds for divorce must first be established.
Grounds for divorce can be established in 3 ways, (1) a fault divorce
(2) both parties have filed affidavits of consent or (3) parties have
lived separate and apart for at least a year.
Fault divorces are rare, expensive and typically impractical. We won't
analyze them here, though it is important for the practitioner to be aware
of all options.
Parties file affidavits of consent with the court to let the court know
that they consent to the divorce. The parties can do this at almost any
time, though it can be "forced" after one year of separation.
Parties can live "separate and apart" even in the same house.
For example, the parties are generally considered separated once a Complaint
in Divorce is filed - even if the parties still live together.
"Compelling" is a fairly strong word. Courts have interpreted
compelling to mean at least "convincing evidence". In the case
of Bonawits v. Bonawits, 907 A2d 611 (Pa. Super. 2006), the Court found
compelling circumstances for a bifurcated divorce where the parties had
been separated for 4 years, significant assets had already been transferred
as part of the divorce and there would be tax advantages to being divorced.
The case of
Schanbacher v. Schanbacher found "compelling circumstances" where the parties had been
separated for 3 years and Husband had moved in within a woman he intended
to marry and where Husband had an incentive to cooperate with moving along
the economic settlement (Husband was paying support). .
Finally, the case of
Chipley v. Chipley, 62 Cumb. 189 (2013) found compelling circumstances where Husband was
incarcerated and Wife planned to marry her boyfriend when the case was
over and Wife had health problems. Wife had no health insurance but could
obtain health insurance when she married her new boyfriend.
However, this is a very fact-specific determination that will vary from
Judge to Judge. Making experienced legal counsel imperative.
Sufficient Economic Protections
This test looks to see if the party opposing bifurcation would be harmed
(or in danger of harm) if the divorce went through prior to economic settlement.
Some issues that impact economic protection include:
- Is there an order freezing the marital assets?
- Is a "qualified" retirement plan a big portion of the marital
estate? Qualified plans automatically revert to the new spouse if the
divorced party dies prior to a qualified domestic relations order being entered.
- Will the spouse opposing bifurcation be kept under the other spouses
- Could existing support arrangements be imperiled?
- Has the party seeking bifurcation done anything "shady" previously?
- What would happen if the party seeking bifurcation died prior to resolution
of economic issues?
The old standard for a bifurcated divorce required the weighing of advantages
and disadvantaged in granting a bifurcated divorce. The present 3-prong
test (establishing grounds - compelling circumstances - economic protection)
is also fact specific, but may be a bit easier to meet.
Neither the Schanbacher or the Chipley case has "precedential"
value. meaning other courts do not need to follow those cases. Accordingly,
this is an unsettled area of law that requires a close fact-by-fact analysis
and a good understanding of the Judge's predilections.