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Reserved Issues -- Bifurcated Divorce

by Wes Cowell, updated 21 October 2016 -- suggest a correction


Illinois allows couples to get divorced NOW and square up on the kids / property / maintenance issues LATER.  If the parties agree to "bifurcate," or if the court finds "appropriate circumstances," bifurcation can help protect property rights and reduce conflict  Need help?  Call, leave your info, or schedule a consult.


Bifurcation -- "Reserving" Issues:  Every divorce is two trials in one.  First we do the divorce -- dissolving of the bonds of matrimony.  It takes five minutes.  The court makes findings (jurisdiction over the parties, irreconcilable differences, etc.) and pronounces the couple divorced.  Once that's done, we immediately turn our attention to the second trial:  the issues of the children, property division, and maintenance.  


Courts prefer this do-it-all-at-once approach because legal certainty is better than ambiguity.  Property values flux and property rights stemming from marriage may "become entangled with supervening rights of third parties, including subsequent spouses."  In re:  Marriage of Cohn, 93 Ill. 2d 190 (1982)   The general rule is you do-it-all-together at the same time as two-trials-in-one.


"Bifurcation" is the exception to the do-it-all-together rule.  In a "bifurcated divorce" the court dissolves the bonds of matrimony relatively quickly, enters orders resolving what it can, and reserves all other issues for the second trial, later.  The law says:


(b) Judgment shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for the allocation of parental responsibilities, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property. The court shall enter a judgment for dissolution that reserves any of these issues either upon (i) agreement of the parties, or (ii) motion of either party and a finding by the court that appropriate circumstances exist. 

750 ILCS 5/401(b).


Impact of Bifurcation:  Once a bifurcation order is entered, you're divorced.  That means you cease to acquire marital property.  Likewise, marital debts no longer build up -- each party is financially severed from the other.  You'll no longer be able to file taxes jointly.  Each former spouse must independently secure health insurance.  Wills will no longer pass assets to the former spouse.  All of the legal rights of spouses end when the bifurcation order is entered.  You're divorced.


Absent Spouse:  This is the most common bifurcation situation.  You want to get divorced but can't find your soon-to-be-ex.  The court will grant the dissolution and reserve all other issues.  You'll be able to get on with your life, re-marry if you wish, rear the children, and acquire and sell property.  If your former spouse ever re-appears, he/she may ask the court to go back and open the case to deal with any of the reserved issues.  


Agreement of the Parties:  The law says that the court "shall" enter a divorce judgment that reserves some issues if the parties agree.   Courts universally interpret the word "shall," in this sentence, as "may."  This is because of the inherent power imbalance in some marriages.  Judges are on the lookout for agreements that reserve issues where there is no good reason to delay resolution and the reservation may work a hardship on one party.  Imagine a case where a couple separate, he earns a good living and lives in the house while she is unemployed and lives in her sister's basement.  He convinces her to sign off on an agreement to bifurcate the divorce, but reserve the issues of property division and maintenance.  It is doubtful a court would allow the bifurcation.


Courts will reserve entering a parenting schedule, however, where one spouse is facing a military deployment.  Courts sometimes reserve child support where a parent is between jobs (this typically lasts a few weeks at the most).  Where it doesn't make sense to address a particular issue, the court doesn't want to waste time, either.  You cannot, however, tell the judge "just forget about this and that . . . we'll take care of it ourselves out of court" and expect to get away with it.

Appropriate Circumstances:  If you NEED to get divorced but your spouse won't cooperate and you can't afford the wait for a trial, you can ask the court to "bifurcate" your divorce.  You'll have to show "appropriate circumstances."  What qualifies as "appropriate circumstances?  Examples:


  • Pregnant wife wanted to marry the father of her unborn child and new husband could provide health insurance for child that current husband could not.  In re:  Marriage of Kenick, 181 Ill.App.3d 266, 536 N.E.2d 982 (1st Dist., 1989).

  • Terminally ill wife allowed bifurcated divorce from mentally abusive husband whose conduct contributed to the deterioration of her health and where parties executed prenuptial agreement and most property held separately.  "In this case, benefit to the emotional status of an elderly, very ill woman, was correctly determined to be "appropriate circumstances."  In re:  Marriage of Blount, 197 Ill.App.3d 816 (4th Dist., 1990).

  • Husband had no income and assets were protected in trust.  He lived in deceased mother's home and lived off of his share of her estate.  Bifurcation allowed with child support reserved.  In re:  Marriage of Schweihs, 272 Ill.App.3d 653, 208 Ill.Dec. 875, 650 N.E.2d 569 (1st Dist., 1995).

  • Terminally ill wife alleging "mental cruelty" (back when that was a ground for divorce in Illinois) allowed to bifurcate to permit her to dispose of her share of marital property according to her wishes.  Copeland v. McClean, 327 Ill.App. 3d 855 (4th, Dist., 2002).

  • High conflict divorce, including verbal altercations and physical violence "too numerous occasions to count" including an episode where one child was struck, had negative impact on the children.   In re:  Marriage of Tomlins and Glenn, 2013 Ill.App. 3d 120099 (3d Dist., 2013).

  • Terminally ill husband with 6 -12 months to live allowed to bifurcate divorce so he could dispose of his share of marital assets according to his wishes.  In re:  Marriage of Breashears, 2016 IL App. 1st 152404 (1st Dist., 2016).


Negative Impact on Minor Children:  Some divorce cases can get nasty and can have a negative impact on the children.  In a creative analysis, the First District Appellate Court concluded that that is enough to permit bifurcation.  NBA Champion Dwayne Wade filed for divorce in November, 2007.  By May, 2010 he had had enough of his soon-to-be-former wife's legal shenanigan's.  He had a lot of complains, but the one that got the most traction was that the protracted litigation was having a negative impact on the children.


The appellate court connected the dots by saying in Kenick, the court allowed bifurcation to serve the best interests of the unborn child and in Blount bifurcation was allowed to "benefit the emotional status" of the movant.  Therefore, Kenick + Blount = bifurcation may be allowed to serve the emotional needs and best interests of the minor children.  The court said:


We therefore determine that reasonable circumstances may exist to justify bifurcation where the court concludes that bifurcation is necessary to protect and promote the emotional and mental well-being of the parties' children. This determination is consistent with other decisions of this court, which have upheld bifurcation where necessary to protect the interests of a party's unborn child and to benefit the emotional status of a party who was elderly and very ill, and with the circuit court's responsibility to mitigate the harm to the parties' children caused by the dissolution process and to promote their well-being.


In re Marriage of D.T. Wade, 408 Ill.App.3d 775, 349 Ill.Dec. 291, 946 N.E.2d 485, (1st Dist., 2011).


I don't agree with the First District's analysis -- bifurcation doesn't save the kids.  Indeed, in Wade's case, the court noted that even after the bifurcation, they still faced a custody trial and a property trial that would likely take longer than custody.  How could the kids be helped by dissolving the bonds of matrimony if they still had to face the custody trial and the acrimony that sometimes comes with splitting up a large estate?


Dwayne Wade's divorce case was bifurcated 22 June 2010.  He was in the middle of heavy contract negotiations.  In July, 2010, he signed a $107.5M contract with the Miami Heat.  The bifurcation made the contract's proceeds non-marital property -- his former wife couldn't touch a penny of that money.  Wade had 107.5 million reasons to bifurcate . . . but the kids were not among them.




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