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BIFURCATION of MARITAL STATUS
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Q. If I have a divorce case pending but there has been no final judgment, is it possible to terminate the marital status so that I can remarry?
A. California requries a period of at least six months elapse between the date that a Petition for Dissolution is filed and served upon the other party, and the earliest date when a marriage can be dissolved. All the remaining issues in cases involving marital breakup may not get resolved that quickly. Some divorce cases can take years to resolve. It is entirely possible to obtain a Judgment for Dissolution even though some or all other matters between the parties are still pending and have not yet been settled or decided by a court.
There are a number of reasons why people may wish to obtain an early status termination. Sometimes they wish to remarry and at other times the fact that the marital ties continue between the parties may itself be a source of friction where, for instance, one party is resisting the fact that the marriage is ending. Terminating status might help the parties to move and so come to agreement on other issues.
However, terminating marital status has some important legal consequences and should be considered carefully. Once the marriage itself is dissolved, the time for eligibililty for social security benefits ceases to run. In order to obtain Social Security benefits based upon a spouse's employment, federal law requires the marriage be of at least ten years duration - counted from the date of marriage to the actual termination date for marital status. It would be inadvisable therefor to seek or to agree to an early termination of marital status if it had the effect of terminating the marriage earlier than 10 years - if the case is otherwise unlikely to be completed within that ten years. The date of physical separation is irrelevant under federal law.
Whether this applies to you depends upon the length of marriage so far. For instance, if you are at the six year mark it is almost certain that the marriage will be dissolved before you reach ten years, and so an early bifurcation may not matter. If your marriage is already nine years old, chances are the case will not be complete before ten.
Keep in mind, neither party is hurt by allowing the ten years to accumulate because Social Security benefits are not paid from the pocket of either spouse, but from the taxpayers' pocketbook. Allowing social security rights to accrue hurts neither party but may be important to the interests of each - indeed, for a spouse paying alimony the receipt of social security benefits may actually decrease that obligation in the future since the receiving spouse has income.
Another common important consequence of bifurcating marital status is the likely termination of health coverage. Almost all health insurance coverage will terminate upon divorce although federal law requires a transitioning period of between 18 to 36 months under COBRA regulations.
There are other important consequences as well.
A party seeking a bifurcation of status will required to indemnify the non-requesting or resisting spouse from some of the consequences if either party requests it of the court. Often bifurcation requests are handled between lawyers by way of Stipulations to that there is never a need to have a judge rule on the question.
These stipulations track California Family Code section 2337. If your spouse is seeking a bifurcation to terminate the marriage, be sure these provisions are agreed upon or ordered by the Court.
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Posted By Thurman Arnold on
March 06, 2010 08:04 am |
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