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-Bifurcation-

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What is a Bifurcation?

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

In both of those situations, the courtwill order that the trial is to be “bifurcated.” Thismeans either that the marital status is terminated and theparties are restored to their single status or a separate trialis to be held concerning a specific issue.

Bifurcation to Terminate the MaritalStatus

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

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

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

If you have been paying spousal or familysupport pursuant to a court order or written agreement you shouldimmediately talk to your accountant or tax preparer to determineif it would be to your advantage to file as a single person forthis year.

Bifurcation of Trial Issues

The court can also bifurcate the trial ofcertain issues. For example, where there is a family businessthat was owned before the marriage, the spouses might disagree asto whether it is community property or the separate property andwhat it is worth. If the business is ultimately found to be theseparate property of the spouse who started it, the value of thebusiness would be irrelevant. In such a case, the judge mightorder that there will be a bifurcated trial to first determine ifthe business is community property or separate property. If theresult of that trial is a finding that the business is communityproperty, then there would be a trial on the value to be placedon it.

Requirements

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

Procedure to Obtain Bifurcation

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

Conditions for Bifurcation of theMarital Status

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

The judge will usually impose certain"conditions" on the granting of a bifurcation. Theseinclude: (1) The obligation to reimburse opposing party for anytax consequences or loss of right to claim probate homestead orfamily allowance; (2) The employee-spouse must maintain existingmedical insurance for the other spouse; (3) The employee-spousemust indemnify the other spouse for loss of pension deathbenefits. In addition, the law requires that, before abifurcation is granted, the pension plans of the spouses must bejoined in the dissolution case.

The condition that existing medialinsurance be maintained is particularly significant. Under thatcondition, the spouse requesting bifurcation must maintainexisting medical insurance for the other spouse. If such coverageis no longer available, the requesting spouse must purchasemedical insurance for the spouse that provides coverage that iscomparable to the existing coverage. If such insurance is notavailable, the requesting spouse must pay for all medical billsincurred by the other spouse that would have been paid by theexisting medical coverage.

Immediate Action Required

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


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