Bifurcation is Still Alive and Kicking in PA by Barbara J. Shah, Esquire

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Last month we posted a blog article on bifurcation of divorces in PA.  As we explained, the term “bifurcate” means to divide something into two parts.  When applied to a divorce, to “bifurcate” means to grant a divorce, giving a person the right to legally remarry, while other issues, such as property division and alimony, remain pending.  While bifurcation can happen in PA, for divorces granted after 1980, it has become relatively rare since the divorce law was amended in 2004 to require that all claims related to a divorce be resolved before a divorce is granted, except in rare and unusual circumstances.

Last week, the PA Superior Court, the appeals court which decides on appeals from PA trial courts (called Common Pleas Courts) posted a decision that reminds Pennsylvanians that bifurcation is alive and well for divorces granted between 1980 and 2004. The divorces to which this concept applies is the “3301(d)” divorce, the divorce in which one spouse files for divorce (the “plaintiff”)  and then files and serves a notice on the other spouse (the “defendant”) that the parties have lived separate and apart for two years (or 3 years prior to 1987 divorce law amendments), and the other spouse takes no action other than to file a response (called a “counter-affidavit”) saying they agree on the period of separation, but they want to raise claims (such as for property division, alimony, etc.).   In this recently-decided case, the plaintiff  (husband) served the divorce complaint and the 3301(d) affidavit on the defendant (wife) in 1998, and the wife, apparently unrepresented, filed a counter-affidavit stating that she wanted to raise a claims for property distribution.  She didn’t file any claims, however.  The husband’s attorney filed the paperwork to make the divorce final, indicating that “property distribution” was still pending.   The divorce was granted by the court, noting in the decree that the court retained jurisdiction to resolve any issues raised but not settled before the divorce.

Fourteen years later, the ex-wife apparently saw an attorney who reviewed the court records and decided that ex-wife might still have a valid claim to ex-husband’s pension.  The attorney filed the paperwork to raise a claim on ex-wife’s behalf for property distribution.  Ex-husband’s attorney filed a motion to dismiss ex-wife’s claim on the grounds that she had never actually raised the claim before the divorce was granted, and that it had been too long since the divorce to raise any claims.  The trial court judge agreed with ex-husband and dismissed ex-wife’s claim. Last week, the Superior Court reversed the trial judge and reinstated ex-wife’s claim for property distribution.

Creative lawyering strikes again!

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