Can You Get Divorced Before Separating Property?

By Michael Butler

In most divorce cases, there are more issues to settle than just the divorce itself, such as custody and separation of property. In contentious divorces, these issues can drag on for months at a time. In some states, you can get divorced and leave other matters until a later date, through the bifurcation process.

In most divorce cases, there are more issues to settle than just the divorce itself, such as custody and separation of property. In contentious divorces, these issues can drag on for months at a time. In some states, you can get divorced and leave other matters until a later date, through the bifurcation process.

Bifurcation

Bifurcation is a legal process by which a judge issues an order of divorce and explicitly leaves all other issues between the parties open. The fact of divorce is final, subject to any appellate rights in the state. The rest of the case, however, is left open and the parties, or their attorneys, will have to return to court to finalize any property settlements. Bifurcation does not mean that the parties can take as long as they want to finalize other issues. Judges generally issue orders that include specific dates by which the other issues will be brought to a final conclusion.

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State Law

In the United States, marriage and divorce are almost exclusively a matter of state law. The states do not agree on the subject of bifurcation. In Kansas and California, bifurcation is a matter of routine. However, Texas and New York almost never allow it. Other states fall somewhere in between the extremes. You might find the rules for bifurcation in your state's divorce code. However, the rules are often determined by judges, so you may need to check court rules and appellate decisions. The best way to find out if bifurcation is allowed in your state is to ask a family law attorney licensed in the state.

Advantages of Bifurcation

If one party to the divorce does not want to get divorced at all, he may seek to intentionally drag out any property settlement as long as possible. Bifurcating the divorce might stop that party from refusing to move on with the case. In cases where the parties have not been a couple for a long time, bifurcation allows them to remarry sooner. If the wife is pregnant, and the parties agree that the husband is not the father, bifurcation can prevent the presumption of spousal paternity from attaching when the child is born.

Disadvantages of Bifurcation

The primary thing that most people want out of a divorce is the divorce itself. For some people, bifurcation might remove their incentive to finalize other matters, including property separation. If a home needs to be assigned to one of the parties and sold, bifurcation might delay the process into a downturn in the real estate market. If the couple is in debt and considering filing for bankruptcy, bifurcation prevents the filing of a joint bankruptcy, which may have implications in settling their debt.

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References

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