The case of Bonawits v. Bonawits marks the first time the Superior Court of Pennsylvania has been faced with a bifurcation action under the amended Pennsylvania Divorce Code. A "bifurcation" or "bifurcated divorce" occurs when a trial court enters a decree of divorce or annulment prior to the final determination of property rights and interests between the parties.
Effective Jan. 28, 2005, the General Assembly amended 23 Pa.C.S.A. Section 3323(c) of the Pennsylvania Divorce Code regarding bifurcation and replaced it with Section 3323(c.1) and Section 3323(g). Prior to these amendments, trial courts, when determining whether bifurcation should be granted, weighed "the advantages and disadvantages" of such an order. The seminal case regarding bifurcation under the Divorce Code prior to the amendment was the case of Wolk v. Wolk, which focused on balancing the advantages vs. the disadvantages of bifurcating a divorce action. Section 3323(c.1) of the amended the Divorce Code provides:
"With the consent of both parties, the court may enter a decree of divorce or annulment prior to the final determination and disposition of the matters provided for in subsection (b) [property rights and interests between the parties…]. In the absence of the consent of both parties, the court may enter a decree of divorce or annulment prior to the final determination and disposition of the matters provided in subsection (b) if:
- Grounds have been established as provided in subsection (g); and
- The moving party has demonstrated that:
- Compelling circumstances exist for the entry of the decree of divorce or annulment; and
- Sufficient economic protections have been provided for the other party during the pendency of the disposition of the matters provided for in subsection (b)."
- Subsection (g) of the amended Divorce Code is to be read in conjunction with (c.1). Subsection (g) reads as follows:
- "For purposes of subsections (c.1) and (d.1), grounds are established as follows:
- In the case of an action for divorce under section 3301(a) or (b) (relating to grounds for divorce), the court adopts a report of the Master or makes its own findings that grounds for divorce exist.
- In the case of an action for divorce under section 3301(c), both parties have filed Affidavits of Consent.
- In the case of an action for divorce under section 3301(d), an Affidavit has been filed and no counter-affidavit has been filed or, if a counter-affidavit has been filed denying the affidavit’s averments that the marriage is irretrievably broken and the parties have lived separate and apart for at least two years at the time of the filing of the affidavit."
In the official comments to the Section 3323(c.1) of the amended Divorce Code, the following is stated:
"New subsection (c.1) rejects the weighing of the advantages and disadvantages under Wolk v. Wolk, rejects any notion of automatic bifurcation and statutorily provides for bifurcation with the consent of both parties.
In absence of consent, bifurcation is permitted only under the limited circumstances provided for under paragraphs (1) and (2).
Part of the reasoning behind Paragraph (1) is the idea that knowing bifurcation is not available until the separation period has run might motivate a party to move the process along by being cooperative in discovery and participating in the resolution of economic issues. Subsection (g) provides when grounds are established.
Paragraph (2) is intended to limit bifurcation to cases where compelling circumstances exist and where economic protections have been provided the other party. Paragraph (2) contemplates that the court will exercise its judgment as to what constitutes "compelling circumstances" and "sufficient economic protections."
The facts of Bonawits are as follows: The parties were married Aug. 17, 1974, and separated in May 2001, when Mrs. Bonawits left the marriage. There were no children born of the marriage. Mrs. Bonawits filed a complaint in divorce on Feb. 26, 2002, and then following the filing of numerous pleadings by each party, master’s hearings were held on May 10, 2004, and Sept. 8, 2004. "At the second hearing, wife’s counsel placed on the record the terms of the parties’ proposed marital settlement agreement. Subsequently, transfers were made between the parties pursuant to the agreement."
On Jan. 3, 2005, Mrs. Bonawits retained new counsel. Thereafter, Mrs. Bonawits’ new counsel informed Mr. Bonawits’ counsel that he did not consider the agreement valid. Mr. Bonawits thereafter requested to bifurcate the matter. Mrs. Bonawits did not agree to the bifurcation and filed several motions including a complaint for support and a petition for alimony pendente lite. On Feb. 2, 2005, Mr. Bonawits filed a petition for bifurcation. Mrs. Bonawits filed her answer to Mr. Bonawits’ petition for bifurcation on Feb. 24, 2005. A hearing was held on the petition and other related matters on April 11, 2005. On July 14, 2005, the trial court granted Mr. Bonawits’ petition, and a divorce decree was entered on Aug. 10, 2005.
Mrs. Bonawits filed a timely appeal and raised the following issues:
Did Mr. Bonawits establish grounds under 23 Pa.C.S.A. Section 3323(g) for the granting of a bifurcation order?
Has Mrs. Bonawits been afforded sufficient economic protections as to allow the granting of a bifurcation and divorce decree?
It is to be noted that a divorce decree entered pursuant to a bifurcation is a final and appealable order that is reviewed by the appellate courts under the abuse of discretion standard.
In analyzing and applying the amended Divorce Code regarding bifurcation, the Superior Court stated:
"As noted above, Wife would not consent to bifurcation. Thus before granting husband such relief, the trial court was required to find that grounds for the divorce existed under subsection 3323(g) and that, pursuant to subsection 3323(c.1), Husband demonstrated that compelling circumstances existed for the entry of a divorce decree and that Wife has been provided with sufficient economic protections during the disposition of economic issues still unresolved between the parties. The trial court concluded that husband had met this burden."
With regard to Mrs. Bonawits’ first question on appeal of whether Mr. Bonawits established grounds under Section 3323(g) warranting the trial court’s granting of a bifurcation order, Mrs. Bonawits first argued that her signing of the affidavit of consent pursuant to Section 3301(c) on Sept. 8, 2004, was conditioned upon her belief that the agreement entered into by the parties before the master would settle all economic claims between the parties. The Superior Court found that the record did not support such a claim.
Alternatively, Mrs. Bonawits "claims that subsection 3323(g)(2) requires the ‘filing’ of the affidavits of consent, and notes that the affidavits in this case were not filed with the Prothonotary until November 3, 2005, five months after bifurcation was granted. According to wife, ‘[p]rocedurally, the court could not grant the divorce because the grounds provided for in section (g)(2) of the divorce code had not been established as required by the [code’s] language … [that] both parties have ‘filed’ affidavits of consent." The Superior Court held that the record supports "the conclusion that the affidavits in this case were ‘filed,’ for purposes of section 3323(g)(2) when accepted by the Divorce Master."
Regarding Mrs. Bonawits’ second question on appeal that the trial court erred in granting bifurcation because Mr. Bonawits did not provide that compelling circumstances existed and that she had been afforded sufficient economic protections, the court addressed it in two parts.
With regard to whether compelling circumstances existed, the Superior Court analyzed the phrase "compelling circumstances" since it is not defined in the statutory section of the Divorce Code. The Superior Court therefore looked to other areas of family law and equated "compelling" to the requirement of "convincing" evidence. Therefore, the Superior Court stated, "We shall determine whether the trial court had ‘convincing’ reasons for granting bifurcation." The trial court considered as convincing reasons the fact that the parties had lived separate and apart for almost four years; that $250,000 had already been transferred to Mrs. Bonawits; and that approximately 90 percent of the real and personal property of the marital estate was transferred to one party or the other pursuant to the agreement put on the record before the master.
Mrs. Bonawits argued that a number of the "convincing" reasons for granting the bifurcation were linked to the "economic protections" and that only the separation period qualified as a convincing/compelling circumstance. She argued that because there was only one convincing/compelling reason, Mr. Bonawits did not meet his burden. The Superior Court disagreed and held that economic factors may also qualify as compelling circumstances. Therefore, the Superior Court held that the convincing/compelling circumstances under the bifurcation analysis were met.
In tackling the issue of whether economic protections were granted to Mrs. Bonawits enabling the bifurcation to be entered, the Superior Court found that the economic protections qualification had been met since 90 percent of the marital estate had been distributed, and Mrs. Bonawits had received a cash payment of $250,000 in the "multi-million dollar marital estate." The Superior Court also held that the fact that the trial court stayed Mrs. Bonawits’ petition for alimony pendente lite and support complaint pending the determination of the validity of the parties’ agreement did not constitute the lack of an economic protection.
Therefore, the Superior Court affirmed the trial court’s granting of the bifurcation since it found that grounds had been established, compelling circumstances for the entry of a divorce decree existed, and sufficient economic protections were granted to Mrs. Bonawits.
Family law practitioners should remember this case because it is a case of first impression before the Superior Court regarding the new bifurcation statute. Interestingly, the practitioner can use this case when an affidavit of consent is not technically "filed" with the Prothonotary but submitted at an equitable distribution hearing.
What is missing from the opinion in this case is whether the 10 percent of the marital estate which was yet to be distributed had adequate protection to be preserved for equitable distribution. The opinion states that the marital estate was a "multi-million-dollar marital estate." Therefore, the 10 percent would appear to be large. However, the amended Divorce Code does not provide that 100 percent economic protection must be provided, but rather "sufficient economic protections." It is clear that the Superior Court, in this case, found that there were "sufficient" economic protections.
Michael E. Bertin is an associate in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel LLP. Mr. Bertin is a member of Council of the Family Law Section of the Pennsylvania Bar Association and is Co-Chairman of the Custody Committee of the Family Law Section of the Philadelphia Bar Association.
This article is reprinted with permission from the June 12, 2007 issue of The Legal Intelligencer © 2007 NLP IP Company
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.