REASONS TO OPPOSE BIFURCATED STATUS DISSOLUTION

DONALD F. CONVISER, CFLS [Certified Family Law Specialist] 818/880-8990, an aggressive and effective divorce and family law attorney representing clients in Ventura and Los Angeles counties for over 35 years, owner of WARNER CENTER LAW OFFICES in Woodland Hills, California, offering a free confidential consultation regarding your divorce or family law issues, brings you another informative blog addressing a few REASONS TO OPPOSE BIFURCATED MARITAL STATUS DISSOLUTION, in a series of blogs designed to inform and educate readers about various areas of Family Law and Divorce, and how he deals with challenges presented to him.

Speaking about challenges, you might note the time I posted this blog - I prepare my blogs before the day's work begins or after the day's work is done. Fortunately (as noted in yesterday's blog), I don't wait until the last minute to do my work. This blog was prepared after midnight.

Today, when I turned on my computer at my office, I was met with a new, unexpected challenge: my hard disk crashed. I'm a fireman, so I got to put out another fire.

After many F10s (for those of you who know what F10s are), I chose the last remaining option other than buying a brand new PC and tolerating Vista's faults: to take the plunge and do a system recovery on my PC, and if the system recovery worked, I would get to [my semantic preference to "have to", to reduce cognitive dissonance] reload all of my software and data into my PC.

My priorities instantly shifted: the appointments and work that I had scheduled for the day had to take a back seat - so I rescheduled them. I got my necessary work and communications done in the time gaps while my system recovery slowly but successfully worked and while I revisited and reloaded my software and data into my PC.

I got home a few minutes before midnight, PC back in operation - challenge overcome. I ate dinner, and then sat down to think and write this blog.

I could have just gone to bed, but I have been enjoying the discipline and opportunity to take on new challenges that daily blogging has offered me, so I will endeavor to keep the daily blogs going until my next vacation [and vacation means to me freedom from any activity, rest, respite, intemission, recreation, an "interval" to give my brain and hands a break, time to go out to play].

In the 4th paragraph of yesterday's blog, I briefly addressed the possibility that a Court might not grant a Bifurcation under certain circumstances. In the 6th paragraph, I noted that the granting of a Bifurcation is discretionary - it is not mandated.

So today, in the wee hours of the morning, I conceived and am writing about few examples of circumstances in which a good argument can be made to oppose a bifurcation.

Family Code Section 2337(c)(2) provides that between the time of the bifurcated status dissolution of marriage and the entry of judgment on all remaining issues, the bifurcating party shall maintain all existing health insurance coverage for the other party and any dependent minor children so long as eligible to do so. BUT if or when the bifurcating party is not eligible to do so, he, in effect, becomes the health insurer of the other party: the bifurcating party must, at his sole expense, provide and maintain comparable health insurance coverage to that which has been existing just prior to the bifurcation, and if that coverage is not available, the bifurcating party shall be responsible to pay, AND SHALL DEMONSTRATE TO THE COURT'S SATISFACTION THE ABILITY TO PAY for the health care of the other party and minor children to the extent that care would have been covered by the existing health coverage, but for the dissolution of the marital status, and shall hold the other party harmless from any adverse consequences resulting from the loss or reduction of the existing coverage. OUCH!

As I noted above, the bifurcating party, in essence, becomes the health insurer for the other party pending resolution of the reserved issues in the case following the Bifurcated Status Dissolution. To cover the health care costs of someone with a pre-existing condition can be a mighty expensive obligation, and the Court will, pursuant to Family Code Section 2337(c)(2), make a determination as to whether or not the bifurcating party has the ability to pay for such health care during the period between the bifurcation and resolution of the balance of the divorce issues in the case.

If the judicial officer feels that the bifurcating party may not be able to afford to pay the health care expenses of the other party pending determination of the reserved issues, the judicial officer may deny a reqested Bifurcated Status Dissolution.

If a Bifurcated Status Dissolution is sought against a person with significant health problems, a competent divorce and family law attorney representing that person should perform discovery into the Bifurcating party's ability to pay significant health care expenses; if ability to pay is apparent, that person's attorney should ask the Court to require the Bifurcating party to post security to provide a fund to cover those expenses to ensure that payment will be forthcoming; if discovery reveals inadequate income or assets to cover such health care expenses, those facts and documents should be set forth in the opposing party's response to a motion for bifurcation, along with historical documents reflecting the non-bifurcating party's ongoing and anticipated continuing health care needs and expenses, as justification demonstrating why the Court should deny the motion.

Another consideration could be argued. COBRA coverage is available only for three years following a Status Dissolution, and is costly. The advantage of COBRA coverage is that there is no exclusion for pre-existing conditions.

A party with pre-existing conditions will likely find it impossible to secure health insurance coverage following expiration of the COBRA period. The COBRA period begins upon entry of the Status Dissolution. The Bifurcating party would be required to pay the COBRA costs pending resolution of the reserved issues in the case. However, the clock would start to tick on the three years of COBRA coverage upon entry of the Status Dissolution, effectively shortening the period of time during which the party with pre-existing conditions could obtain health coverage [since the ATROs during the pendency of the divorce case restrain the parties from cancelling insurance coverage; during the marriage, employment-realted health insurance coverage invariably provides for coverage of spouses and dependents - even with pre-existing conditions, at reasonable cost].

Those factors, coupled with the non-bifurcating party's inability to afford the COBRA payments after the reserved issues are resolved, could be presented and argued to the Court by a competent divorce and family law attorney as justification why the Court should not grant a Bifurcated Status Dissolution.

Another area of opposition to a Bifurcated Status Dissolution comes to mind. After 10 years of marriage, a spouse is entitled to derivative Social Security benefits, i.e., that spouse has the election of receiving his/her own Social Security benefits, or if the other party earned significantly more, that spouse has the election of receiving Social Security benefits calculated on the basis of the other party's contributions to the Social Security system. So if a Bifurcation is sought by the wealthier party at a point 9-1/2 years into the marriage, a Court may well pay attention to an opposition to the Bifurcation seeking to delay termination of marital status until after the 10-year mark.

It is after 1:00 a.m., so these examples will be all that I post tonight - more may follow. Perhaps I'll follow with a blog reflecting some of the protection areas that the Bifurcating party loses by bifurcating marital status. Whereas Family Code Section 2337 protects the non-bifurcating party, it requires a pound of flesh from the bifurcating party.

Please address to me any areas of divorce or family law on which you would like to see another Blog from me.

Posted by DONALD F. CONVISER, a Certified Family Law Specialist in Woodland Hills, California, owner of WARNER CENTER LAW OFFICES, effectively and aggressively representing clients in family law and divorce cases throughout the counties of Los Angeles and Ventura for over 35 years, based in the San Fernando Valley, and appearing before Superior Courts including Los Angeles, Van Nuys, San Fernando, Simi Valley, Ventura, and many others, representing divorce and family law clients in matters involving (or opposing) Bifurcation of Marital Status, premarital agreements, prenuptial agreements, divorces, paternity, stepparent adoption, nonmarital dissolution, child custody, visitation, child support, spousal support, and all other areas of divorce and family law practice.