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Bifurcation in California dissolution (divorce) proceedings

Bifurcation in California dissolution (divorce) proceedings is the topic of this blog post.

It can take many months, even several years, for a contested divorce to wind its way through the courts. Faced with this 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.

Bifurcations are generally 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.

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.

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 Divorce. So, only cases in which the Respondent was served before July 1st can be bifurcated during that year.

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 appropriate court papers must be prepared, which must then be filed with copies mailed to the spouse or his/her attorney. Approximately 4-8 weeks after the motion is filed, the requesting spouse and his/her attorney if they have one have to appear before the judge, who will almost always grant the request.

California law 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.

A California Court of Appeal has ruled that a request for bifurcation does not have to be justified by a compelling showing of need. Instead it is the spouse opposing bifurcation who must present compelling reasons for denial.

While the granting of a request for bifurcation of the marital status is virtually automatic in the great majority of cases, 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 divorce 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.

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 October 15th.

Attorneys or parties in California who would like to view a portion of a sample points and authorities in support of a motion to bifurcate marital status in California sold by the author can see below.

Attorneys or parties in California who would like to view a portion of a sample stipulation and order to bifurcate marital status in California sold by the author can see below.

Attorneys or parties in California that would like more information on a California divorce litigation document package containing over 45 sample documents including a sample points and authorities in support of a motion to bifurcate marital status in California and a sample stipulation and order for bifurcation of marital status in California can use the link shown below.

California divorce litigation document package

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

Visit his website at http://www.legaldocspro.com

If you would like to subscribe to his weekly legal newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm

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