4 Things To Know About Bifurcation And The Contentious Divorce

Posted on: 30 September 2015

If you are going through a highly contentious divorce, one of the tools you have available to you--in some states--is called "bifurcation," whereby you can become legally divorced before all the issues are settled. There are four things you should know about this to see if it could be helpful to you.

1. There are several advantages to bifurcation in certain cases.

You may prefer to bifurcate your divorce if:

  • The litigation over assets and debts is complicated and promises to be long and drawn out, especially in the case of joint ownership of family businesses.
  • You wish to be free to remarry and/or you feel your ex is purposely creating settlement issues to prevent it.
  • You both wish to be free to remarry.
  • You wish to file your taxes as a single person.
  • One of you were terminally ill and are concerned that your time is short, so you wish to arrange your estate before that happens.
  • You want to end the marriage and/or settle custody issues quickly for the children's sake.
  • You want to clarify what is pre-marriage property sooner than it could be otherwise.
  • One of you is filing for bankruptcy, and the other one wants to have the automatic stay lifted so that the divorce can continue.

It is also advantageous in that you can count spousal maintenance payments as a tax deduction once the marriage is over in the first part of the bifurcation.

2. Not all states allow it, and the ones that do may have some restrictions or case law about what situations merit it and what can be settled in a later procedure.

A state may:

  • Have a liberal stance on its justification, and/or will allow it at the discretion of the trial judge. 
  • Allow it for certain specified reasons.
  • Allow it if both parties agree to it and it is determined to be in both parties' best interests.
  • Allow it but require that child custody issues be settled with the first part of the procedure and that it is in the best interests of the children, or they specify that only property issues can be settled in the second part of the divorce.
  • Allow custody issues to be decided later.
  • Seldom allow it if at all.
  • Permit it under unusual circumstances.
  • Not address this issue at all in legislation.

3. Bifurcation can take away your ex's incentive to settle property disputes or custody matters quickly.

If it is your ex who wants to remarry, then agreeing to bifurcation can encourage them to let the other matters drag on. What happens is the person with the most money and resources will generally "win" because the other person wouldn't be able to afford to keep fighting.

4. There are other disadvantages to it as well.

Other downsides to bifurcation include:

  • The fact that you may not be able to file a joint tax return and enjoy the benefits that brings.
  • It can be costly in terms of attorney fees and court costs, because you are essentially going through litigation twice for something that normally is handled once.
  • In a state that allows permanent custody arrangements to be deferred, children can feel frustrated and unsettled.

To decide if divorce bifurcation would be helpful in your case, talk to an attorney.

Family counseling or mediation may help you and your ex approach contentious issues in a safe, moderated environment. There are options such as arbitration which may help to speed a divorce settlement up. To find out what your options are for your particular situation, you should consult a family law attorney such as Stephen J Weisbrod Esq Law.