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 health insurance?
- 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.