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What is a bifurcated divorce?

UPDATED: June 17, 2020

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What you need to know...

  • A bifurcated divorce occurs when issues in a divorce case are divided and disposed of separately.
  • Bifurcation is not appropriate in every divorce.
  • The procedure for bifurcating a divorce varies from state to state.
  • Due to additional litigation expenses, bifurcating a divorce case increase legal costs.

Divorce can be acrimonious and expensive, and it can take years to finalize because people are fighting over issues that are most precious to them — usually children, financial support, and the division of assets. In an effort to promote the expeditious resolution of issues in divorce cases, some states have instituted a process known as the bifurcated divorce.

The bifurcated divorce allows divorcing couples to separate and resolve some issues before others. This article provides answers to legal questions relating to a bifurcated divorce:

  • what is bifurcation in divorce,
  • what are the pros and cons for bifurcation in a divorce,
  • how to bifurcate a divorce, and
  • which states allow bifurcated divorces.

If you are looking for a divorce attorney, enter your ZIP code above to find lawyers in your area.

The Bifurcated Divorce Defined

According to Cornell University's Legal Information Institute, bifurcation is a judge's ability to divide a trial into two or more parts so as to render a judgment on one or more legal issues without looking at all aspects of the case.

In civil matters, cases are typically bifurcated to separate proceedings on the issue of liability from proceedings on the issue of damages. It is also common in the criminal context that the issue of guilt is tried in the first stage and the issue of punishment is decided in the second stage.

Bifurcation is sometimes allowed in a divorce proceeding. A bifurcated divorce occurs when issues in a divorce case are divided and disposed of separately. It does not follow the path of the typical contested divorce process.

Bifurcation in a divorce allows spouses to obtain an early judgment on certain issues, usually uncontested issues, before the resolution of other issues, usually contested issues. The typical bifurcated divorce allows spouses to become legally divorced before other marital issues and details of the divorce have been finalized.

For example, one or both spouses may ask the judge to dissolve the marital status of the parties first while remaining issues, such as child custody and visitation, child support, spousal support (also known as alimony or maintenance), and property distribution are reserved for resolution at a later date by settlement or contested evidentiary hearings.

In this situation, the bifurcation allows the court to handle the end of the marriage separately from the other issues while providing the parties additional time to resolve those issues. If the parties cannot negotiate the settlement of the remaining issues themselves, the court retains the jurisdiction and ability to decide all unresolved issues at trial.

How do you proceed? To a certain extent, it depends on where you live. How do you bifurcate a divorce in California is different from how you do so in Alabama. You can learn about the differences between the states in the table below.

Typically, though, if bifurcation is allowed, one or both parties will have to make a motion to bifurcate. What is a motion to bifurcate? It's simply a request from one party for the court to allow bifurcation supported with reasons why doing so is sought.

Reasons for Bifurcation of a Divorce

Bifurcation is not appropriate in every divorce. Depending on the parties, the issues, and the circumstances presented, there are pros and cons to a bifurcated divorce.

What are the benefits of a bifurcated divorce?

There are a lot of reasons why a bifurcated divorce might be the right approach for you.

Remarriage 

A primary benefit of a bifurcated divorce that seeks an early dissolution of the marriage is that it allows divorcing spouses to move on with their lives more quickly. This can be important for many reasons. Remarriage is the most common reason to obtain an official judgment of divorce before a judgment on other issues.

For religious or other reasons, some people may be uncomfortable engaging in a new relationship while technically still married to someone else. So, in order to remarry or engage in a new relationship, one or both spouses may want or need to be declared officially single.

Moving On

Sometimes, spouses simply wish to close that chapter of their lives. While most states with no-fault grounds for divorce require a short waiting period, a bifurcated divorce can be comparatively shorter than the months, and often years, it takes in contested divorces to finally terminate the marital ties.

How long does a bifurcated divorce take? While the ultimate resolution of the bifurcated divorce may not happen any sooner than a regular divorce, the opportunity to move on is available to the partners after a very short period of time.

Classification of Post-Marriage Property

Another important purpose to formally end the marriage in advance is to distinguish post-marital property from marital property. Spouses going through a divorce may want to acquire property without having it classified as marital property, which is subject to division between spouses. The laws of some states provide that income and property obtained after the marriage may not be classified as marital property.

Classification of Pre-Marriage Property

Some couples seek a bifurcation to determine property issues first, such as whether certain property is premarital property. Things like businesses, real estate, artwork, and vehicles that were purchased around the time of the marriage, but where marital money or efforts were used as payment or contribution or were exchanged for other assets during the marriage, can go either way for ownership.

By bifurcating these issues and asking the court to acknowledge the property's status immediately, divorce proceedings often move much faster since there is a clear division of property.

Single Filer Tax Status

Some couples also wish to file their taxes as singles during the year the divorce is filed. Bifurcating the divorce and giving the couples single taxpayer status enables this to happen.

Dividing Complex Issues

Sometimes parties seek to bifurcate complex issues, such as determining child custody or the division of a business. In some cases, there is a psychological effect for couples in having the really acrimonious issues disposed of. Resolving the contentious issues ends the major fights and can help divorcing couples come to agreements on the outstanding minor issues more easily.

What are the cons of a bifurcated divorce?

  • Increased Cost: Bifurcating a divorce case can add to legal costs due to increased lawyer fees and litigation expenses.
  • Incentive to Delay: Another potential negative to terminating the marriage first is that if only one party wanted to bifurcate, the other party might take the opportunity to delay resolving the other issues.
  • Inefficient Judicial Process: For states that do not permit a bifurcated divorce, some see it as an inefficient process that leads to piecemeal appeals. The general rationale is that the bifurcated divorce interferes with finality jurisprudence because, in order for the dissolution judgment to become a final order, all issues must be determined at the time of the dissolution.

How to Bifurcate a Divorce

The procedure for bifurcating a divorce varies from state to state. Some states do not permit bifurcated proceedings in divorce cases.

For states that allow a bifurcated divorce, they normally require the filing of a motion setting forth the basis for the bifurcation and a hearing before the presiding judge to determine whether bifurcation is appropriate.

Many states require the consent of both parties, or a showing of good cause to bifurcate the proceedings. In those states, the decision to bifurcate is at the discretion of the judge, which will not be overturned unless there was an abuse of that discretion or the judge erred by contravening statutory law prohibiting bifurcation.

States that Allow Bifurcated Divorce

Not all states allow divorce proceedings to be bifurcated. Some states allow bifurcation only if both parties agree. Other states require a showing of good cause and that neither party will be prejudiced by bifurcating the divorce proceedings.

States With Statutes That Expressly Allow Bifurcated Divorce

Alaska, California, Colorado, Hawaii, Illinois, Indiana, Maryland, New Jersey, New Mexico, Ohio, and Virginia are among the few states that expressly permit bifurcated proceedings in their divorce statutes. These state statutes usually set forth specific requirements or standards that must be met before a judge can grant a bifurcation.

States That Allow Bifurcated Divorce by Case Law

Most states do not directly address the question by statute, but allow the practice of bifurcation by case law precedent. In these states, some courts restrict or regulate the practice by requiring unusual and compelling circumstances for a bifurcation.

States That Do Not Allow Bifurcated Divorce

Arizona, Iowa, Michigan, Montana, Nebraska, North Dakota, Rhode Island, Texas, Washington, and the District of Columbia do not allow issues to be split up in a divorce through bifurcated proceedings. These states tend to strongly discourage the piecemeal handling of the case that results from the bifurcation of divorce issues.

State-By-State Chart

A state-by-state chart identifying which states recognize bifurcation is below, but because state laws vary and change, it's important to consult a divorce lawyer in the appropriate jurisdiction to find out if a bifurcated divorce is allowed and what restrictions or standards apply.

State Name

Allows Bifurcated Divorce

Statute, Caselaw, and/or Special Requirements

Alabama

Maybe

Bifurcation divorce in Alabama is not expressly allowed by statute or case law, but most likely can be requested by motion

Alaska

Yes, by statute

See Alaska Statutes § 25.24.150 (Judgments for Custody), § 25.24.155 (Reservation of Issues) and § 25.24.160 (Judgment)

Arizona

No

The Arizona Supreme Court held that the use of separate judgments to resolve issues of marriage dissolution and property distribution is erroneous. Porter v. Estate of Pigg.

Arkansas

Yes

The Arkansas Supreme Court upheld the trial court's order for a "limited divorce" despite statutory language in Arkansas Code Annotated § 9–12–315(a) mandating that marital property be distributed at the time a divorce decree is entered. Forrest v. Forrest.

California

Yes, by statute

The parties must both make a stipulation for bifurcation of marital status in California. See California Family Code § 2337(a) ("In a proceeding for dissolution of marriage, the court, upon noticed motion, may sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues.")

Colorado

Yes, by statute

See Colorado Revised Statutes § 14-10-106(b)(1) (1997) ("the entry of a decree with respect to parental responsibilities, support, maintenance, or disposition of property may be deferred by the court until after the entry of the decree of dissolution of marriage or the decree of legal separation upon a finding that a deferral is in the best interests of the parties.")

Connecticut

Maybe

Not expressly allowed by statute or case law, but most likely can be requested by motion

Delaware

Maybe

Not expressly allowed by statute or case law, but most likely can be requested by motion

Florida

Yes, but disfavored

Bifurcation divorce in Florida is legal but strongly disfavored. The Florida Supreme Court held: "Although we approve the granting of this final dissolution with a reservation of jurisdiction to subsequently determine property, custody, and support issues, we believe trial judges should avoid this split procedure. ... This split procedure should be used only when it is clearly necessary for the best interests of the parties or their children. The convenience of one of the parties for an early remarriage does not justify its use."

Georgia

Maybe

Bifurcation divorce in Georgia is not expressly allowed by statute or case law, but most likely can be requested by motion

Hawaii

Yes, by statute

See Hawaii Revised Statutes § 580-47(a) (court may reserve jurisdiction of matters "by agreement of both parties or by order of court after finding that good cause exists"); Also the Hawaii Supreme Court held that the Family Court may bifurcate dissolution and final property distribution upon agreement of the parties or a finding of good cause. Kakinami v. Kakinami.

Idaho

Maybe

Not expressly allowed by statute or case law, but most likely can be requested by motion

Illinois

Yes, by statute but disfavored

Bifurcation divorce in Illinois is statutorily permitted but disfavored. See Illinois Compiled Statutes § 750 ILCS 5/403(e) ("Contested trials shall be on a bifurcated basis with the issue of whether irreconcilable differences have caused the irretrievable breakdown of the marriage, as described in Section 401, being tried first, regardless of whether that issue is contested or uncontested. Upon the court determining that irreconcilable differences have caused the irretrievable breakdown of the marriage, the court may allow additional time for the parties to settle amicably the remaining issues before resuming the trial, or may proceed immediately to trial on the remaining issues.") See also discussion in In re Marriage of Breashears, 2016 IL App (1st) 152404 (October 17, 2016)

Indiana

Yes, by statute

See Indiana Code § 31-15-2-14(a) ("The court may bifurcate the issues in an action for dissolution of marriage filed under section 2 of this chapter ... to provide for a summary disposition of uncontested issues and a final hearing of contested issues.")

Iowa

No

Iowa Code § Chapter 598.21 requires a division of property contemporaneous with the decree of dissolution. See also discussion in In re Marriage of Thatcher, 864 N.W.2d 533 (Iowa 2015)

Kansas

Yes

The Kansas Court of Appeals held that bifurcation is permitted at the discretion of the trial judge. In re Marriage of Wade, 20 Kan. App. 2d 159, 884 P.2d 736 (1994)

Kentucky

Maybe

Not expressly allowed by statute, but most likely can be requested by motion

Louisiana

Maybe

Not expressly allowed by statute, but most likely can be requested by motion

Maine

Maybe

Not expressly allowed by statute, but most likely can be requested by motion

Maryland

Yes, by statute

Bifurcation divorce in Maryland is allowed by statute. See Maryland Code Annotated, Family Law § 8-203(a) (requiring property division order to be made within 90 days of the divorce decree unless both parties consent to further delay)

Massachusetts

Yes

The decision to bifurcate is within the sound discretion of the judge but before a court will grant one, both parties must agree or the requesting party must show good cause and that bifurcation will not jeopardize the interests of the other party. Dobos v. Driscoll, 404 Mass. 634, cert. denied sub nom. Kehoe v. Dobos, 493 U.S. 850 (1989)

Michigan

No

Michigan Court Rules § 3.211(B)(3) (expressly provides that a judgment of divorce must include a determination of property rights)

Minnesota

Yes

The Minnesota Appellate Court recognized that in a bifurcated dissolution proceeding, dissolution occurs when judgment dissolving marriage is entered, although other aspects of the proceeding may be reserved and resolved by later judgment. Gabrielson v. Gabrielson, 363 N.W.2d 814 (Minn. App. 1985)

Mississippi

Maybe

Not expressly allowed by statute, but most likely can be requested by motion

Missouri

Yes, but disfavored

The Missouri Court of Appeals held: "Although it is not preferred, there is precedent for the bifurcated resolution of a domestic relations case." State Ex Rel. Wilson v. Brown, 897 S.W.2d 171 (Mo. Ct. App. 1995) citing Bell v. Bell, 849 S.W.2d 194 (Mo. App. W.D. 1993)

Montana

No

Montana Code Annotated § 40-4-104(1)(c) provides: "(1) The district court shall enter a decree of dissolution of marriage if: ...(c) to the extent it has jurisdiction to do so, the court has considered, approved, or made provision for parenting, the support of any child entitled to support, the maintenance of either spouse, and the disposition of property." Also the Montana Supreme Court held that it was erroneous to bifurcate the issues in a dissolution. In re Marriage of Kraske, 2003 MT 50N, para. 18 (2003) citing In re Marriage of Skinner, 240 Mont. 299, 783 P.2d 1350 (1989).

Nebraska

No

The Nebraska Supreme Court held that all issues between divorcing parties must be determined at the time of dissolution, and any attempt to retain jurisdiction to address property rights at a later date is invalid. Kimball v. Kimball, 228 Neb. 702, 424 N.W.2d 122 (1988)

Nevada

Yes

The Nevada Supreme Court allowed the parties to agree to bifurcation notwithstanding the fact that the court had, only one year earlier, expressly stated that trial courts must contemporaneously dispose of property at the time of the divorce. Ellet v. Ellet, 94 Nev. 34, 573 P.2d 1179 (1978)

New Hampshire

Maybe

Not expressly allowed by statute, but most likely can be requested by motion

New Jersey

Yes, by statute but disfavored

See New Jersey Court Rules § 5:7–8 provides: "Bifurcation of trial of the divorce, dissolution of civil union, termination of domestic partnership or custody dispute from trial of disputes over support and equitable distribution shall be permitted only with the approval of the Family Presiding Judge, which approval shall be granted only in extraordinary circumstances and for good cause shown."

Also:

The New Jersey Superior Court prohibits bifurcation except in the most unusual and extenuating circumstances. Frankel v. Frankel, 274 N.J. Super. 585, 644 A.2d 1132 (App. Div. 1994), Kronberg v. Kronberg, 263 N.J. Super. 632, 623 A.2d 806, 813 (N.J. Super. Ct. Ch. Div.1993).

New Mexico

Yes, by statute

See New Mexico Statutes § 40-4-20A: ("The failure to divide or distribute property on the entry of a decree of dissolution of marriage or of separation shall not affect the property rights of either the husband or wife.")

New York

Split, but disfavored

The Third Department of New York's Appellate Division has held that a divorce decree is nonbinding and without legal effect if it fails to make an award of equitable distribution. Busa v. Busa, 196 A.D.2d 267, 609 N.Y.S.2d 452 (1994). This view was rejected by the Fourth Department in Zack v. Zack, 183 A.D.2d 382, 590 N.Y.S.2d 632 (1992)

North Carolina

Yes

The North Carolina Court of Appeals decided that the severance of a divorce claim from an equitable distribution claim does not contravene the state's equitable distribution statute or prejudice substantial rights. Sharp v. Sharp, 84 N.C. App. 128, 351 S.E.2d 799 (1987)

North Dakota

No

North Dakota Century Code § 14-05-24 states: "When a divorce is granted, the court shall make an equitable distribution of the property and debts of the parties." The North Dakota Supreme Court held that its finality jurisprudence under N.D.R.Civ.P. 54(b) precludes piecemeal appeals that result from the bifurcation of divorce issues. Albrecht v. Albrecht, 2014 ND 221 (2014)

Ohio

Yes

Bifurcation divorce in Ohio is permitted. See Ohio Revised Code § 3105.10(A) ("The court of common pleas shall hear any of the causes for divorce or annulment charged in the complaint and may, upon proof to the satisfaction of the court, pronounce the marriage contract dissolved and both of the parties released from their obligations.")

Oklahoma

Yes

According to the Oklahoma Supreme Court: "This court has repeatedly held that an action for divorce and for division of jointly acquired property presents two causes of action maintainable separately." Hibbard v. Hibbard, 1952 OK 273, 247 P.2d 504 (1952); Alexander v. Alexander, 2015 OK 52 (2015) (reaffirming that the Supreme Court has held that Oklahoma law allows issues to be bifurcated and presented in separate proceedings in Dissolution of Marriage.)

Oregon

Maybe

Not expressly allowed by statute, but most likely can be requested by motion

Pennsylvania

Yes, but disfavored

The Pennsylvania Superior Court held that a three-pronged test must be satisfied for bifurcation divorce in Pennsylvania, namely:

(i) the grounds for divorce must be established; (ii) compelling circumstances must exist for entry of a Divorce Decree; and (iii) sufficient economic protections must be in place for the other party while the remaining claims are pending. Bonawits v. Bonawits, 907 A2d 611 (Pa. Super. 2006); Wolk v. Wolk, 318 Pa.Super. 311, 464 A.2d 1359 (Pa. Super. Ct. 1983)

Rhode Island

No

The Rhode Island Supreme Court held: "There is no provision in the Rules of Procedure for a 'bifurcated divorce.' Our jurisprudence anticipates that all the issues in a divorce will be adjudicated in a single proceeding. Any exceptions to this requirement must be accomplished through Rule 54(b) of the Family Court Rules of Procedure for Domestic Relations that provides for the entry of judgment upon some, but not all, claims for relief. We now unequivocally declare that (except in extraordinary cases and then only with respect to issues of child support, custody, visitation and relocation) all the issues between the parties shall be adjudicated in a single proceeding." Cardinale v. Cardinale, 889 A.2d 210 (R.I.2006)

South Carolina

Maybe

Not expressly allowed by statute, but most likely can be requested by motion

South Dakota

Maybe

Not expressly allowed by statute, but most likely can be requested by motion

Tennessee

Maybe

Not expressly allowed by statute, but most likely can be requested by motion

Texas

No

The Texas Court of Appeals expressly disapproved the practice of bifurcating proceedings because of concern that it causes protracted litigation. Adam v. Stewart, 552 S.W.2d 536 (Tex. Civ. App. 1977)

Utah

Yes

The Utah Court of Appeals appointed a special master for determinations on "further proceedings" after the trial court entered a bifurcated divorce decree. Taylor v. Taylor, 263 P.3d 1200 (Utah Ct. App. 2011)

Vermont

Yes

The Vermont Supreme Court did not disapprove the family court order bifurcating the contested divorce proceedings, first making a determination concerning the marriage and subsequently determining the property and spousal maintenance issues. Samis v. Samis, 2011 VT 21 (2011)

Virginia

Yes, by statute

See Virginia Code Annotated § 107.3(A) allowing bifurcation on "the motion of either party ... when the court determines that such action is clearly necessary. The Virginia Court of Appeals also held: "When it enacted Code § 20–109.1, the General Assembly was presumably aware of a divorce court's inherent equity power to adjudicate separately the issues associated with a divorce." Rogers v. Damron, 23 Va.App. 708, 479 S.E.2d 540 (Va. Ct. App.1997), (Nenninger v. Nenninger, 19 Va. App. 696, 454 S.E.2d 45 (1995), Christensen v. Christensen, 26 Va. App. 651, 496 S.E.2d 132 (1998)

Washington

No

Washington Revised Code Annotated § 26.09.050(1) ("In entering a decree of dissolution of marriage or domestic partnership ... the court shall ... make provision for the disposition of property and liabilities of the parties?")

West Virginia

Yes, but disfavored

The West Virginia Supreme Court held it disfavors bifurcation and restricts its use to unusual circumstances where its advantages outweigh its disadvantages. Holst v. MacQueen, 184 W. Va. 620, 403 S.E.2d 22 (1991)

Wisconsin

Maybe

Not expressly allowed by statute, but most likely can be requested by motion

Wyoming

Maybe

Not expressly allowed by statute, but most likely can be requested by motion

District of Columbia

No

The District of Columbia Court of Appeals interpreted § 32–702(d) of the District of Columbia Code to require a division of property contemporaneous with the marital dissolution. Davis v. Davis, 957 A.2d 576, 581 (2008)

The Bottom Line on the Bifurcated Divorce

There are pros and cons to a bifurcated divorce, which unlike the traditional contested divorce process permits divorcing spouses to divide and adjudicate certain issues before a final judgment is entered on all issues.

Sometimes bifurcation can speed up a case by preliminarily resolving undisputed issues, but sometimes it can delay the process if either side procrastinates in finalizing the remaining issues. The ability to have a bifurcated divorce depends on state law, and if allowed, the decision to bifurcate the divorce will be at the discretion of a judge who will consider any statutory or case law requirements before determining if bifurcation is appropriate under the circumstances.

If you are considering a bifurcation for your divorce, you should consult with a divorce attorney to carefully discuss the particular circumstances of your case and to find out if the laws of your state allow it. You can begin your search for an attorney near you or find help by entering your ZIP code below and asking your question on our forum of hundreds of attorneys and legal professionals.

References:

  1. https://www.law.cornell.edu/wex/bifurcated_trial
  2. https://www.leagle.com/decision/1993369175ariz1941338
  3. https://law.justia.com/cases/arkansas/supreme-court/1983/83-54-0.html
  4. https://www.courtlistener.com/opinion/1797863/claughton-v-claughton/
  5. https://www.courtlistener.com/opinion/871169/kakinami-v-kakinami/

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