“Bifurcation in a Pennsylvania Divorce Proceeding” by Barbara J. Shah

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The term “bifurcation” means to divide something into two parts.  When this term is applied to a divorce, it generally means, “Can I get divorced – legally free to remarry and file my taxes as single – while other issues such as property division are still pending?”  Before 1980, the term did not apply to PA divorces.  The only kind of divorce allowed before that was a “fault” divorce (where the spouse who wanted a divorce had to allege “grounds” for divorce – that they were entirely innocent and the other spouse had committed such bad acts as to cause the marriage to fail – and then prove those grounds in a trial). If they were successful, or if the other spouse simply didn’t put up a defense, the divorce was granted. Property division was easy, as it followed “title.” that is, if a bank account or a pension or a piece of real estate was in your name, you owned it after the divorce, free and clear of any claims by the other spouse.  If an asset was owned jointly, it was to be split between the parties 50-50.  There was no post-divorce alimony.

If you thought that was still the law in PA, you are more than 35 years behind the times!  The Divorce Code of 1980, which became effective that year, revolutionized divorce law in PA. Many Pennsylvanians had been living separate and apart for many years, resigned to fact that that if they were not the “innocent and injured spouse,” they could not get a divorce from their former loved one.   Suddenly in 1980, the floodgates opened. “No-fault” divorce became legal in PA.  As originally written, the law granted the right for a “guilty” spouse who had been living separate and apart for 3 years or more to request a divorce from the “innocent” spouse by filing an affidavit alleging a 3 year or more separation, and serving it on the other spouse.  Suddenly there was no defense to the divorce, and the best thing the defendant/spouse could do was to request from the court a fair property distribution and some alimony.  For other just then separating couples, it gave the left-behind spouse a 3-year window to get ready for the divorce.   In 1987, the law was changed to turn the 3-year separation requirement into a 2-year separation.  By 2016 it left PA one of the few states in the US with a long separation requirement, possibly the longest one.  However, in 2016, the PA legislature again changed the law to allow a party to request a divorce from the other spouse after only a 1-year separation (so long as that separation began after December 3, 2016).   Of course, if both spouses agreed to a divorce under the 1980 Divorce Code, they could file their consents to the divorce at any time after 90 days from the date the divorce was served on the other party.  That portion of the law has never changed.

However, this entire discussion about “no-fault” divorce involves the divorce only; property division, (called “equitable distribution” by the new divorce code”), alimony, and requests for attorney fees could not be addressed until grounds for a divorce had been established.   Unlike the previous “title” approach to property division, equitable distribution assumes that everything acquired during a marriage by either party, regardless of title, is “marital property” and will be divided between the parties according to what is “fair,” by the courts, if the parties are unable to agree.

During the period when a “no-fault” divorce could only be requested after a 3-year separation (or even a 2-year separation) in PA, bifurcation was a hot topic. In addition, those couples who had been separated for (sometimes many more than) 3 years at the time the new Divorce Code became effective, were anxious to move on with their lives.  They wanted a mechanism whereby the divorce itself could be granted while property division was pending.   Initially, the courts often “bifurcated” divorces as a matter of course.  However, because of the problems of dividing pensions, pensions beneficiary designations, the loss of health insurance, and a host of other issues, the courts began to deny bifurcation if one spouse said no.  In 2004, an amendment to the Divorce Code put an end to bifurcation of divorces.  Although under certain extreme circumstances divorces can still be bifurcated, especially now that the one-year separation rule has gone into effect, requests for bifurcation are less and less likely to be made, and less likely to be granted by the courts.

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