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.

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.

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.

Divorce is never easy, but we can help. Learn More

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.

Divorce is never easy, but we can help. Learn More
Advantages of Divorce Bifurcation in California
 

References

Related articles

Can a Division at Divorce Be a Fraudulent Conveyance?

Property division is a fundamental part of a divorce proceeding. Couples are generally free to agree on a property settlement or have the court decide according to state law. As part of the process, assets may be sold or title transferred between spouses. However, if the intent of the transfer is to avoid creditors' claims, the courts have the authority to void the transaction and protect the legal right of the creditor to collect on the debt.

Does a Divorce Settlement Require a Refinance on an Upside Down Mortgage?

An upside down or underwater mortgage is one in which the homeowner owes more to his mortgage lender than the house is worth. Typically, such a mortgage happens when the homeowner buys his house in a healthy real estate market that later takes a downturn. When a divorcing couple owns their home subject to such a mortgage, getting rid of the debt can be difficult, and the divorce settlement can require one spouse to refinance the mortgage as part of the divorce.

Requirements for a California Marital Settlement Agreement

A marital settlement agreement, or MSA, allows two parties who are divorcing to craft a mutually beneficial contract to end their marriage. Courts in California and elsewhere favor settlement over litigation for a number of important reasons. Litigation can be emotionally draining, time-consuming and expensive. Settlements empower the parties to work out the terms of their divorce, instead of being bound by the decision of the court. For example, the community property statutes in California favor a 50-50 split of marital assets, but an MSA can alter that formula if the parties want a different division.

Get Divorced Online

Related articles

What Happens If an Uncontested Divorce Suddenly Becomes Contested?

The advent of no-fault divorce in every state gives rise to the prevailing concept of the "uncontested divorce" -- a ...

Meaning of Bifurcation in Divorce

Divorce can be a long, drawn-out affair. If it's contested, it can take years. In the meantime, spouses remain legally ...

Contested Divorce Procedures

The exact procedures of divorce vary between states, but divorce can be a fairly simple process if you have an ...

Temporary Orders Vs. Permanent Orders in a Divorce

The divorce process can take a considerable time from beginning to end. Often, it’s impractical or even impossible for ...

Browse by category
Ready to Begin? GET STARTED