Bifurcation of dissolution of marriage actions – Part Two
This is the second section of a two- part discussion of the practical and legal effects of a bifurcation of a dissolution of marriage action. 1 The first part was printed in the November 1981 issue. In this issue, Miller reviews the case law, available appellate remedies and the bifurcation procedures of the State of California.
The Case Law
Florida Statute §61.052(2) reads, in part, as follows: If, at any time, the court finds that the marriage is irretrievably broken, the court shall enter a judgment of dissolution of the marriage Does this mean that any time one party files a petition and alleges that the marriage is irretrievably broken and that allegation is admitted, the petitioner can immediately proceed to dissolve the marriage? The answer is “no.”
The first Florida decision of significance is Hyman v. Hyman, 310 So. 2d 378 (Fla. 2d D.C.A. 1975), cert, discharged, 329 So. 2d 299 (Fla. 1976). Hyman established the law that a trial court may enter a judgment dissolving the marriage but reserve jurisdiction to determine later the property rights between the parties. It is essential that the reservation of jurisdiction be specific and not general in nature.2
Hyman taught that the initial final judgment was interlocutory in nature. Subsequently, it was seemingly established that when a bifurcation is granted, that bifurcation constitutes a “partial judgment of dissolution [which] is final insofar as the marital status of the parties is concerned.. . . “3 T he issue of whether a judgment dissolving the marriage but reserving jurisdiction to determine property rights at a subsequent time is “final” or “interlocutory” may still not be resolved.4
The important language in Hyman, contained in Judge Beranek’s opinion on rehearing, is that:
[W]hen circumstances warrant the trial court may exercise its discretion in entering an interlocutory dissolution and reserving jurisdiction to later determine property rights. Doing so may create problems requiring further judicial determination, but this is no ground for holding that jurisdiction does not exist. We believe the good to be accomplished outweighs any uncertainty created. Such a procedure should be employed with caution and will be the exception rather than the rule. Trial judges have discretion and we are confident that this discretion will be wisely exercised in the exceptional circumstances which may require an order as outlined herein.
Hyman says “may” and not “shall.” The trial courts are directed to use “caution” and only to bifurcate under “exceptional circumstances.” Judge Beranek’s confidence in this regard has, thus far, been misplaced.
The general rule expressed in Hyman has been followed by the courts to the extent that when the courts have been presented with the same issue, they have reiterated the same principle of law with very little elaboration. The bifurcations granted at the trial court level are infrequently tested, and there is no reported case in which a trial court has been reversed when it bifurcated a dissolution.5
Claughton v. Claughton6 i ndicates that the trial judges should avoid the “split procedure” of bifurcation, and further states that “the process (of splitting) can cause multiple legal and procedural problems which result in delay and additional expense to the litigants.” Claughton states that the bifurcation “should be used only when it is clearly necessary for the best interests of the parties or their children. The convenience of one of the parties for an early remarriage does not justify its use.” This admonition with respect to “remarriage” is virtually the only specific direction the appellate courts have provided as to when a motion for bifurcation should not be granted.
The decision in Glazer v. Glazer,7 t he First District Court expression following that of the Florida Supreme Court in Claughton, indicated that it would “not hesitate to reverse a judgment dissolving a marriage and re-, serving jurisdiction to determine property matters if the case has been improperly bifurcated over the objection of one of the paities.”8 T he appellant’s prayers for relief in Glazer were denied on different grounds to be discussed below. To date the appellate courts have provided little direction on which lawyers and trial courts can rely in determining whether a motion for bifurcation should be granted or denied.
An earlier discussion of the bifurcation process is contained in Judge Nathan’s opinion concurring in part and dissenting in part in Kipnis v. Kipnis, 330 So. 2d 67 (Fla. 3d D.C.A. 1976). He cautioned that bifurcation “is not advisable and should be limited to instances where it is not practicable to hear and dispose of all such issues or matters prior to the entry of any judgment because of some compelling or sufficient reason other than for convenience of the court.” (Emphasis added.) The opinion then states that [t]oo many circumstances can occur, detrimental to a party, between the time of the entry of a judgment dissolving a marriage and the entry of a judgment some weeks or months later dealing with the property rights.
Unfortunately, neither Kipnis nor any other appellate decision has delineated the circumstances which could be detrimental.
The Wife Remarries
Claughton raises another extremely important issue by finding that upon remarriage the wife is barred from recovering periodic alimony or lump sum alimony “which is predicated on… need…,” but “that remarriage…does not bar consideration of lump sum alimony to the extent it is used to provide…an equitable share of the assets…accumulated during…marriage….”
The wife contemplating remarriage is faced with a practical dilemma because our case law has not provided guidelines as to the meaning of “equitable.”9 I t is likely that a trial judge may award a wife a lesser amount as her “equitable share” if she has remarried than she would receive if she has not remarried. It is unlikely that the judge would be able to separate the concept of “need” from that of “equitable distribution” on a subconscious level. Where there are substantial assets available for equitable distribution, counsel would do well to advise the wife not to remarry until the property issues are resolved.
The same reasoning could also apply where the issue of child support is still to be resolved. The wife who has remarried will probably not receive as much support for her children as she would were she not remarried, notwithstanding the obvious response that the new husband has no legal obligation (absent adoption proceedings) to another man’s children. It is impossible to determine with specificity the child support needs, and the court will no doubt have in mind that the new husband, when providing shelter for his bride, will also be providing shelter for her children.
Clearly, the wife’s position is prejudiced if she remarries before the property rights are resolved; whereas the husband can remarry with little, if any, concern for his rights being prejudiced. Although the trial court should not consider the fact that the husband has remarried in making its award of lump sum alimony on the basis of equitable distribution, or its award of child support, the court’s decision will be colored in some manner when the husband testifies to his present living expenses.
The California System
In California, a community property state, bifurcation of divorce cases is encouraged.10 Bifurcation is discretionary. There is a six-month “waiting period” in every divorce. The rationale is that the continuation of a relationship which has been destroyed serves no useful public policy, and requiring the parties to stay married until the property rights are resolved could “engender additional bitterness and unhappiness.”11 T he waiting period is an important distinguishing factor, but the most important distinction is that the parties’ share of the assets accumulated during the marriage can be precisely ascertained—each is entitled to one-half of the community property. There may be disputes as to what assets are included, and the value of those assets may be at issue, but once those issues are resolved, the trial court has no discretion as to the amount of assets to be received by each spouse.12
California wives whose divorce actions are bifurcated can also suffer adverse consequences but those consequences are addressed by the courts on a “local-rule” level. Before a bifurcation is granted, the spouse seeking relief must execute certain “standard conditions” of bifurcation. These conditions can be summarized as follows:
1. If the husband dies, his estate shall indemnify the wife from any taxes, interest and penalties paid in the event the dissolution prior to the division of community property results in a taxable event by reason of the ultimate division of the parties’ community property, which taxes would not have been payable if the parties were still married at the time the division was made.
2. Until judgment has been entered on all remaining issues, or if the husband dies, his estate must maintain medical insurance for as long as he or the estate is legally able; and if he is not able, the husband or his estate shall purchase and maintain comparable medical insurance coverage; or in the alternative, the husband or his estate shall be responsible for all expenses incurred which would have been covered by such insurance.
3. The husband, or his estate, must indemnify the wife from all adverse consequences in the event the bifurcation results in the loss of the wife’s “homestead” rights.
4. The wife is indemnified from all adverse consequences in the event the bifurcation results in the loss of her right to a “family allowance.”
5. The wife is indemnified from all adverse consequences in the event the bifurcation results in the loss of “pension benefits” she would have received as the surviving spouse. If counsel for the spouse opposing the bifurcation process can establish other bona fide objections, then additional conditions will be imposed before the divorce action is bifurcated.
California may have the right idea. Provided there are no adverse consequences of bifurcation or the adverse consequences are minimized, and since the waiting period precludes the precipitous dissolution of marriage while the parties are still “hot under the collar,” there is little reason to deny the bifurcation. The division of assets will not be affected. The conditions imposed by the court take care of almost every other problem, and if they do not, the court can exercise its discretion and deny the bifurcation.
The problems with the “Florida system” are as follows:
1. The courts are not imposing conditions, standard or otherwise, of bifurcation.
2. Were conditions imposed, the differences between “community property” and “equitable distribution” are such that at least until the case law on equitable distribution develops, dissolution of marriage in which substantial assets have been accumulated should generally not be bifurcated.
In Glazer, the trial court entered an order granting the husband’s motion for bifurcation. The wife filed a petition for writ of certiorari before a final hearing dissolving the marriage was held. The trial court proceedings were stayed by the appellate court while the petition was being considered. The trial court had previously denied the wife’s motion to stay.
Glazer reasons that all judgments can be appealed within 30 days of rendition, and, if the bifurcation is erroneous, it will be reversed in a plenary appeal. The appellate procedure in Glazer spanned approximately two months, and during this period of time, the parties resolved their property rights.13
Glazer indicates that had the wife been able to demonstrate some wrong which could not be remedied on appeal after the final judgment was rendered, the petition would have been granted.
Glazer never reached the question of whether the trial court’s bifurcation was correct. The court simply stated the time to question the trial court’s bifurcation was after the final judgment dissolving the marriage. The practitioner now has been given direction or misdirection as to when to appeal.
Interestingly, in Mauser14 t he order granting the husband’s motion for bifurcation was not appealed by the wife. Instead, the wife waited and appealed the final judgment dissolving the marriage and reserving jurisdiction over the property rights. The husband filed a motion to quash the appeal, and the sole basis for his motion was that the wife should have appealed the order granting the bifurcation, and when the wife did not do so, she waived her rights to object to the trial court’s position. The husband’s motion was granted.
The Fourth District obviously changed its thinking in Glazer, but Hauser represents the better-reasoned view. Consider the following factors by way of example only:
1. The appellate courts should consider the question with as little time delay as possible. No purpose is served by waiting. There will still be only one additional appellate procedure, because if the order granting the bifurcation is upheld on appeal, there would be no basis for appealing the subsequent judgment dissolving the marriage. The husband seeking the bifurcation will also want to know where he stands as soon as possible.
2. If the final judgment dissolving the marriage is entered before any appeal procedure can be commenced, there are numerous potential problems among which are the following:
• Assume the wife’s medical insurance coverage under the husband’s policy has lapsed. The wife becomes ill and incurs significant medical expense. The insurance company, which was not a party to the divorce action, certainly has at least an argument that it should not be responsible for the wife’s bills. Certainly, the hospital admitting the wife for treatment is going to question whether the wife has medical insurance coverage, and this question could cause the wife inconvenience, if not greater problems.
• Assume the husband dies after the final judgment dissolving the marriage. The question of whether the bifurcation should stand is of profound significance. The woman is or is not the “wife” of the deceased, and, as discussed above, being the “wife” has numerous ramifications. The appellate court will find itself on the horns of a real dilemma with virtually no case law to follow. a simple stroke of the pen, the court can restore the woman to the financial advantages of being the surviving spouse, or it can place her in the position of litigating the property issues which remain with the estate of her former husband.15 T he appellate remedies confronting the wife who objects to a bifurcation are clear, if not correct. On the other hand, the husband who objects to a denial of his requested bifurcation may be without any appellate remedy.
There are no reported cases in which either party has appealed the denial of a motion to bifurcate. An order of denial is a nonfinal order. The most imaginative of counsel will find it difficult to convince an appellate court that an appeal falls within the purview of Fla. R. App. P. 9.130 which governs the review of nonfinal orders.
Fla. R. App. P. 9.100 applies to original proceedings. Subparagraph (f) requires a showing of “a departure from the actual requirements of law.” There is no law on the question of when bifurcation should be granted.
Bifurcation of dissolution of marriage actions is an important issue with far reaching legal and practical ramifications. The present case law is totally inadequate, and new law needs to be rapidly developed. Here are some suggestions:
1. “Standard conditions” must be imposed in order to protect the rights of the affected spouse.
2. Additional conditions can be imposed on a case-by-case basis, but the appellate courts must first provide guidelines.
3. A reasonable waiting period should be imposed to avoid “precipitous divorces.”
4. If a bifurcation is granted, the court should implement the equivalent of a “speedy trial” rule so that the property issues are resolved as soon as possible. The hearing should be set in the initial final judgment. Continuances should be granted sparingly.
It is possible that the “equitable distribution” law will ultimately evolve to the extent that there will be a rebuttable presumption that each spouse is entitled to one-half of the assets accumulated during the marriage.16 I f the parties stipulate to any division of the assets, then with that stipulation, and the implementation of the recommendations set forth above, the bifurcation process could be workable. If the parties do not have a substantial amount of assets to divide, the bifurcation process could be workable if the appropriate conditions are imposed. Query: Would the “remarriage rule” of Claughton still be necessary?
Our courts have treated the law concerning bifurcation as a “stepchild.” It is time to give this subject the attention it deserves.
1 I n the first part of this article appearing in the November 1981 issue, the author discussed at footnote 6 the difficulty of insurance conversion for a former spouse. Note that pursuant to new legislation, all policies of group health insurance issued or renewed after October 1, 1981, for a former spouse, which would otherwise terminate because of a dissolution of marriage, shall continue without interruption under certain conditions. See, Laws of Fla., Ch. 81-134; FLA. STAT. §627.6676 (1981).
2 M ason v. Mason, 371 So. 2d 226 (Fla. 2d D.C.A. 1979).
3Galbut v. Garfinkl, 340 So. 2d 470 (Fla. 1976).
4 L ocke v. Locke, 383 So. 2d 273 (Fla. 3d D.C.A. 1980). This point may or may not be dicta, but the case is certainly disturbing and indicates that the right hand of the judiciary does not know what the left hand is doing.
5 I n Galbut v. Garfinkl, 340 So. 2d 470 (Fla. 1976), the bifurcation by the trial court was reversed, but on the grounds that the trial judge was wrong in entering the order of bifurcation without considering the wife’s deposition when the trial court had previously announced that the deposition would be considered.
6 C laughton v. Claughton, 361 So. 2d 752 (Fla. 3d. D.C.A. 1978).
7 G lazer v. Glazer, 394 So. 2d 141 (Fla. 4th D.C.A. 1981).
9 B rown v. Brown, 300 So. 2d 719 (Fla. 1st D.C.A. 1974) and Canakaris established that “equitable” does not mean “equal.” “[W]e are not engrafting upon the jurisprudence of this state the law of community property,” says Canakaris. See also Knight and Elser, Critical Factors Which Influence Equitable Distribution Awards, 55 FLA. B. J. 581 (July-Aug. 1981).
10 In Re Marriage of Fink, 54 Cal. App. 3d 357, 126 Cal. Rptr. 626 (1976, 2d Dist) and In Re Marriage of Lusk, 86 Cal. App. 3d 228, 150 Cal. Rptr. 63 (1978, 4th Dist.).
11 H ull v. Superior Court, 84 Cal. App. 2d 139, 5 Cal. Rptr. 1 (1960).
12 I nterestingly, the “freedom to remarry” in California constitutes a sufficient basis for bifurcation, and that is the one factor that Florida, in Claughton v. Claughton, 362 So. 2d 752 (Fla. 3d D.C.A. 1974), indicates is not a sufficient basis for bifurcation. See In Re Marriage of Fink, 54 Cal. Ap. 3d 357,126 Cal. Rptr. 26 (1976, 2d Dist).
13 O ne can never be positive, but counsel for Mrs.Glazer (this author) is convinced that had the trial court proceedings not been stayed and the husband temporarily denied his long sought-after divorce, either no settlement would have been made, or if there were a settlement, the terms would have been substantially less favorable to the wife.
14 Hauser is unreported. Its case number is 80-443 in the Fourth District.
15 See Galbut v. Garfinkl, 340 So. 2d 470 (Fla. 1976).
l6 See Mahaffey v. Mahaffey, __So. 2d ___ (Fla. 5th D.C.A. 1981) opinion filed Case # ___
[6 Fla. L. W. 1828] which notes that. . . “the concept of ‘equitable distribution’ does not require an equal division of assets. .. although that is a good starting point in most cases.”
James Fox Miller is in private practice in Hollywood and is a principal in Miller and Schwartz, P.A. He has served as author and faculty member of several family law Florida Bar CLE programs and Broward County Bar programs. He received his J.D. degree from Northwestern University and is a member of the Florida and Illinois Bars. He is currently serving as a member of the Executive Council of the Family Law Section of The Florida Bar and is legislative chairman for that section. Miller is also chairman of the Broward County Bar Association Family Law Committee and is past president of the South Broward County Bar Association.
Miller acknowledges the assistance in the preparation of this article of A. Matthew Miller, his partner and brother, who received his J.D. degree from the New York School of Law in 1974.
He writes this column on behalf of the Family Law Section, Melvyn B. Frumkes, chairman.