Everyone who files for divorce wants the divorce over as soon as possible. You cannot get divorced in Illinois until all the issues are resolved.
“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.” 750 ILCS 5/401(b)
It is possible to request that the actual judgment for dissolution of marriage be entered immediately while the other issues in the divorce (child support, maintenance, division of assets, parenting time) be resolved later. An Illinois divorce’s issues can only be reserved by agreement or if there an “appropriate circumstance”
“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)
This division of the resolution of the divorce itself from the underlying issues of the divorce is called “bifurcating the divorce.”
Normally, an Illinois divorce trial has everything happen at once.
“Contested trials shall be on a bifurcated basis with the issue of whether irreconcilable differences have caused the irretrievable breakdown of the marriage, as described in Section 401, being tried first, regardless of whether that issue is contested or uncontested. Upon the court determining that irreconcilable differences have caused the irretrievable breakdown of the marriage, the court may allow additional time for the parties to settle amicably the remaining issues before resuming the trial, or may proceed immediately to trial on the remaining issues.” 750 ILCS 5/403(e)
A bifurcated divorce merely resolves the grounds for divorce and issues the judgment for dissolution of marriage. The remaining issues in a bifurcated divorce are resolved during a later trial or later settlement with the two parties no longer married in the meantime.
How To Get A Bifurcated Divorce In Illinois
Either party to an Illinois divorce may file a motion for bifurcation at any time. Getting a bifurcated divorce in Illinois hinges on whether there is an “appropriate circumstance” for the court to grant a divorce while leaving remaining issues reserved.
Illinois divorce courts, in theory, are hesitant to only do half the job. In reality, what is the difference? So, each court decides Illinois bifurcation on its own accord.
“[T]he decision to bifurcate a judgment of dissolution of marriage rests within the sound discretion of the trial court” Copeland v. McLean, 327 Ill. App. 3d 855, 867 (Ill. App. Ct. 2002)
Higher courts have deemed bifurcation appropriate in default divorces, divorces where child support is impossible to pay (like a prisoner), or cases where there are no children’s issues because the kids do not live with the parents.
“Illinois law encourages resolution of all issues ancillary to dissolution, as well as dissolution itself, in a single proceeding, for reasons of certainty, financial security…and judicial economy. …Upon a finding of “appropriate circumstances,” however, section 401(b) of the IMDMA allows a court to enter a judgment of dissolution while reserving for later determination such issues as maintenance, child support, and property disposition. (Ill. Rev. Stat. 1987, ch. 40, par. 401(b).) No attempt has been made to compile an exhaustive list of facts justifying a bifurcated judgment…but the supreme court has identified the following “appropriate circumstances”: the court lacks personal jurisdiction over the respondent; a party is unable to pay child support or maintenance if so ordered; the court has created an adequate fund for child support pursuant to section 503(g) of the IMDMA (Ill. Rev. Stat. 1987, ch. 40, par. 503(g)); the parties’ offspring do not reside with either parent; or any other reason of “the same caliber”” In re Marriage of Kenik (1989), 181 Ill. App.3d 266 (citations omitted)
Apart from default divorces where the respondent could not be served, 90% of bifurcated divorces will be because one party is having a health issue and does not want their soon-to-be-divorced spouse to inherit a windfall of money.
Bifurcated Divorces To Prevent Inheritance
Illinois spouses automatically get an inheritance if their spouse dies…even if they are in the middle of a divorce.
If there is no will, the spouse gets half the ENTIRE estate. Marital and Non-marital property.
“If there is a surviving spouse and also a descendant of the decedent: 1/2 of the entire estate to the surviving spouse and 1/2 to the decedent’s descendants per stirpes.” 755 ILCS 5/2-1(a)
It is not enough to write your spouse out of your will. Even with a will in place that purports to deny the spouse any right to the entire estate, the surviving spouse still has the right to renounce that will and get 1/3 of the entire estate.
“If a will is renounced by the testator’s surviving spouse, whether or not the will contains any provision for the benefit of the surviving spouse, the surviving spouse is entitled to the following share of the testator’s estate after payment of all just claims: 1/3 of the entire estate if the testator leaves a descendant or 1/2 of the entire estate if the testator leaves no descendant.” 755 ILCS 5/2-8(a)
This possible windfall to a soon-to-be-ex-spouse, is sufficient if a spouse has any health issue that could result in death.
“[T]he impending death of a party represents an appropriate circumstance [for granting a bifurcated divorce]” In re Marriage of Breashears, 2016 IL App (1st) 152404
Just being old and worried about automatic inheritance upon death is sufficient reason for a bifurcated divorce. Courts have found that an “appropriate circumstance” for a bifurcated divorce in the mere “emotional benefit to the petitioner — because respondent might receive more assets if petitioner predeceases respondent before the final judgment?” In re Marriage of Blount, 197 Ill. App. 3d 816, 820 (Ill. App. Ct. 1990)
Bifurcating An Illinois Divorce To Stem The Accumulation Of Marital Assets
For a spouse who is earning and saving, there will be a great need to finalize the divorce so that those ongoing savings are no longer considered marital.
Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)
Divisible marital property is all property acquired between the wedding date and the entry of the judgment of dissolution of marriage.
“‘[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a)
“For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property.” 750 ILCS 5/503(b)
Furthermore, a saving spouse is likely to have savings which are constantly increasing in value and, thus, their spouse could be entitled to a greater share of those assets as the values increase with time.
Most Illinois divorce courts will value assets on the date of the dissolution of marriage.
“[T]he proper valuation date is [the date of entry of the judgment of dissolution of marriage]. To hold otherwise would have the effect of treating appreciation of the corporation subsequent to the dissolution as marital property contrary to [the Illinois Marriage and Dissolution of Marriage Act].” In re Marriage of Rossi, 446 NE 2d 1198 – Ill: Appellate Court, 1st Dist. 1983
Illinois courts do not encourage any reservation of division of assets by granting a bifurcated divorce. This only makes things more complicated.
When the division of assets are “reserved following a dissolution of marriage judgment, the court could likely be required to adjudicate marital-property rights that have become entangled with the supervening rights of third parties, including subsequent spouses…Additionally, entering a judgment of dissolution prior to property disposition would complicate, rather than simplify, matters with respect to the rights of a surviving spouse in the event of an intervening death.” In re Marriage of Cohn, 93 Ill. 2d 190 (1982)
If a court does allow the bifurcated divorce with the division of assets reserved, the date of the divorce will be the valuation date for the division of all marital assets.
After a bifurcated divorce, “the proper valuation date is [the date of entry of the judgment of dissolution of marriage]. To hold otherwise would have the effect of treating appreciation of the corporation subsequent to the dissolution as marital property contrary to [the Illinois Marriage and Dissolution of Marriage Act].” In re Marriage of Rossi, 446 NE 2d 1198 – Ill: Appellate Court, 1st Dist. 1983
If you need to get a divorce yesterday, consider filing a motion to bifurcate your Illinois divorce…but you had better have a good reason. Contact my Chicago, Illinois family law firm to learn more about how to bifurcate your divorce today.