Q. If I have a California divorce case pending but there has been no final
judgment, is it possible to terminate the marital status so that I can remarry?
Terminating Marital Status Before the Property is Divided Is Easy to Accomplish
California requires that at least six months elapse between the date that
a Petition for Dissolution is filed and served upon the other party before
the marital relationship can be terminated. Family Code section 2339.
This can occur despite the fact that all other issues (support, custody,
property division, etc.) remain unresolved or unadjudicated. The remaining
issues in contested cases rarely get addressed that quickly, and the average
litigated divorce case takes nine months to two years to conclude. Hence,
many people find themselves desiring a Judgment for Dissolution on the
soonest available date, even though the rest of the case remains pending.
There are a number of reasons why people may wish to obtain an early marital
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 in denial that
the marriage is over. Terminating status might help the parties to move
on emotionally, and so to come to agreement on issues relating to the
However, terminating marital status has some important legal and economic
consequences and should be considered carefully. In order to obtain derivative
Social Security benefits based upon the other 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. Once the marriage itself is dissolved, the time for becoming eligible
for social security benefits ceases to run. It is inadvisable therefor
to seek or to agree to an early termination of marital status if it has
the effect of terminating the marriage earlier than the 10 year mark.
Social Security benefits are not an asset that can be divided by state
courts in divorce, and it costs the working spouse absolutely nothing
to allow the other to spouse to perfect his or her interest in these benefits.
Family Code section 2337, which governs these applications, speaks in terms of a right of indemnity
(i.e., reimbursement) in favor of a former spouse who suffers financial
injury as a consequence of an early dissolution of the marriage, it is
a very weak provision and it would require a lot of legal expense to enforce it.
Whether you should resist a bifurcation of status request may depend 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 completed
before ten years are achieved.
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 mature 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 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. You cannot obtain the
tax savings that is often available by filing a joint tax return (or 'married
filing separately') because once marriage is dissolved, your filing
status becomes "single". There can be very serious impacts on
inheritance rights (whether by Will or by Trust) once the marriage is
terminated. Where title to property was held in joint tenancy (giving
each spouse the right to inherit the other's interest in such property
upon death), that joint tenancy is severed by operation of law and so
becomes a tenancy in common without survivorship rights once the marital
status is terminated. There can be consequences to certain forms of retirement
plans, and it is a good idea to first join any pensions that can be joined
into the proceeding - in fact, joinder of applicable retirement plans
is first required, and failure to have done this constitutes grounds for
objecting to a "bifo".
A party seeking a bifurcation of status will be required to indemnify
the non-requesting or resisting spouse from some of the so-called "bifo"
consequences (i.e., the requesting party may be ordered to pay the costs
of maintaining health insurance, often at increased COBRA premiums, until
a Judgment issues on the entire case).
Often bifurcation requests are handled informally by way of a stipulation,
thus obviating the need to actually file a motion in order to have a judge
rule on the application. These stipulations track the requirements set forth in
California Family Code section 2337.
A sample form of Stipulation to Bifurcate marital status is provided here
for illustration purposes only.
If your spouse is seeking a bifurcation to terminate the marriage, be
sure these provisions are including in the both the Stipulation to Bifurcate
and the Judgment of Dissolution.
If you do wish to bifurcate marital status, you must use
Judicial Council Form FL-315. The burden of proof required to succeed is very slight, and the key case
on the topic is
Gionis v. Superior Court (1988) 202 Cal.App.3d 786. As a matter of interest, Dr. Gionis was married
to John Wayne's daughter, Aissa. Still, they can successfully be opposed
(and they should be) very substantial prejudice might result. As a practical
matter, it is pretty hard to recover against the other party for injury
that an early "bifo" may cause.
If you want to read more about terminating marital status, click here!
Author: Thurman W. Arnold, III