Sunday, April 26, 2009

UNTYING THE KNOT EARLY: BIFURCATION OF MARITAL STATUS

Certified Family Law Specialist DONALD F. CONVISER, owner of WARNER CENTER LAW OFFICES in Woodland Hills CA, a divorce and family law attorney who has been aggressively and effectively serving clients in Los Angeles and Ventura counties for over over 35 years, offering a free confidential consultation regarding your divorce or family law problems, brings you another informative blog, addressing BIFURCATION OF MARITAL STATUS, in a series of blogs designed to inform and educate readers about various areas of Divorce and Family Law, and how he deals with challenges presented to him.

In my Friday, April 24, 2009 blog, entitled A CREATIVE APPROACH TO THE PRACTICE OF DIVORCE AND FAMILY LAW, I addressed services that I had performed for a client who had an exigent need to "untie the knot", i.e., obtain a Judgment terminating his marital status before the balance of his divorce issues were resolved, so that he could marry his fiance' before her U.S. visa expired.

Today, I'll address some of the mechanics, requirements and consequences for BIFURCATION OF MARITAL STATUS.

Before any party decides to seek Bifurcation of Marital Status, he/she should consider the consequences of a Bifurcation, which include the loss of valuable rights associated with marital status, and conditions which the Court may impose on the party seeking Bifurcation, and the possibility that a Court may not grant a Bifurcation under certain circumstances. Consult a competent divorce or family law attorney for guidance before you make such an important decision.

Bifurcation of Marital Status cannot become effective prior to the 6-month time limitation under FAMILY CODE Section 2339: "Waiting Period Before Dissolution Judgment Becomes Final" - the clock on which begins to tick only upon service of a copy of the Summons and Petition on the Respondent [the "cooling-off period" mandated by the legislature for parties to re-think dissolving their marriage; until the early 1970s, the initial Judgment issued by the Court was only an "Interlocutory Judgment" and the "Final Judgment" couldn't be filed until at least 6 months later].

Bifurcation is consistent with the legislative policy of the Family Code to allow quick dissolution of Marriage. The FAMILY LAW ACT, as augmented and interpreted by the Judicial Council rules, authorizes a trial court, in its discretion, not only to bifurcate the trial, but to enter a separate judgment of dissolution before other issues have been litigated. [In re Marriage of FINK (1976) 54 Cal.App.3d 527]. Consistent with the legislative policy favoring no-fault dissolution of marriage, the moving party needs only slight evidence for bifurcation. [GIONIS vs. Superior Court (1988) 202 Cal.App.3d 786, 790]. California Rules of Court, Rule 5.175, authorizes the bifurcation of one or more issues to be tried separately before other issues are tried. Family Code Section 2337(a) provides that upon noticed Motion, the court 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.

An APPLICATION OR RESPONSE TO APPLICATION FOR SEPARATE TRIAL [Judicial Council Form FL-315] must be included with the Notice of Motion. That form was revised in January, 2009 from the former APPLICATION FOR SEPARATE TRIAL, and is the current form adopted for mandatory use by the Judicial Council for such purpose.

Family Code Section 2337(b) and Los Angeles Superior Court local Rule 14.17 require that the moving party serve his/her Preliminary Declaration of Disclosure with all required attachments on the nonmoving party, with the proposed Status Judgment, and file a proof of service with the Court, for a bifurcated dissolution of marital status.

Family Code Section 2337(d) requires that the moving party join his/her retirement or pension plan as a party to the proceeding for dissolution (divorce) prior to or simultaneously with entry of judgment granting status dissolution, and requires certain language to be set forth in an attachment to the Judgment granting status dissolution provisionally awarding, without prejudice, a separate interest equal to 1/2 of all benefits accrued under the specific plan(s), naming the plans, during the marriage, and requiring the plans to continue to treat the parties as married (or domestic partners as the case may be) for purposes of any survivor rights or benefits available under the plan, among other required language.

A BIFURCATION OF STATUS OF MARRIAGE OR DOMESTIC PARTNERSHIP - ATTACHMENT [Judicial Council Form FL-347, adopted for Mandatory Use - new as of January 1, 2009] must be attached to the proposed Judgment, and the Court will impose certain conditions and may impose certain other conditions set forth in Family Code Section 2337(c) upon the moving party if it grants the Motion for Bifurcation of Marital Status and a Status Dissolution of the Marriage, and the Court will reserve jurisdiction for later determination of all other pending issues in the case.

If you have any questions or concerns about BIFURCATION OF MARITAL STATUS, or any other Divorce or Family Law matter, call DONALD F. CONVISER at 818-880-8990 for a free confidential consultation.

Posted by DONALD F. CONVISER, a Certified Family Law Specialist in Woodland Hills, California, owner of WARNER CENTER LAW OFFICES, aggressively and effectively representing people in divorce and family law cases throughout the counties of Los Angeles and Ventura for over 35 years, before the Superior Courts in Los Angeles, Ventura, Van Nuys, Simi Valley, San Fernando, Burbank, Glendale, Pasadena, Pomona, and Santa Monica, representing family and divorce clients in matters involving Bifurcation of Marital Status, premarital agreements, prenuptial agreements, divorces, paternity, stepparent adoptions, nonmarital disollutions, child support, spousal support, child custody, child visitation, and all other areas of family law and divorce law practice.

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