The appellate courts “may find bifurcation in family court is generally ill-advised”; I don’t

Posted Friday, April 21st, 2023 by Gregory Forman
Filed under Jurisprudence, Of Interest to Family Law Attorneys, South Carolina Specific

This week, for the second time in four years, the South Carolina appellate courts published an opinion noting it is generally “ill-advised” for the family court to bifurcate trials.  Both times, this criticism was in the context of common-law marriage litigation.  To the extent such bifurcation creates procedural headaches for the appellate courts, that could be resolved with legislative changes or changes to the rules of appellate procedure that address the appealability of final orders that do not end the case.   In my own practice, I have seen occasions in which bifurcation was the only logical way to proceed.

In my (I would like to think considered) opinion, bifurcation is advisable whenever the determination of a threshold substantive issue potentially forecloses the remainder of the case.  There are two issues where I find bifurcation particularly sensible.

The obvious circumstance is common-law marriage claims.  Typically, a party seeking a finding of common law marriage is also seeking equitable distribution of marital property and often additionally seeking alimony.  There is no marital property if there is no marriage. The family court further cannot award alimony if there is no spouse.  Spending substantial time litigating and presenting evidence on those issues only to have the court find there was no marriage is a waste of the litigants and judicial resources.  Because the factual issues regarding the existence of the marriage tend to be very distinct from the factual issues of property division and alimony, the issue of common-law marriage is especially useful to bifurcate .

An area where I have commonly seen bifurcated trials are De Facto Custodian or psychological parent claims.  As a threshold matter, one has to establish one is a de facto custodian or psychological parent before one can be awarded visitation or custody.  While the proof issues may overlap, they are not completely congruent.  Again it can be a waste of resources to fully litigate all issues only for the court to find the moving party failed to meet the required threshold.

There are a few other family law issues where bifurcation might be advisable. Where divorce litigation involves both substantial custody and financial issues, it might make sense to not exactly bifurcate but to try those issues sequentially so the guardian ad litem does not have to be present for the whole trial. While I have yet to see paternity be contested at the time of a custody/visitation trial, where paternity as well as custody/visitation is at issue, it likely makes sense to determine paternity before addressing visitation.

Essentially, whenever a threshold issue needs to be resolved before other substantive issues can even be addressed, bifurcation may be advisable.  Whenever the evidentiary issues between the threshold issue and the subsequent issue have little overlap, bifurcation should actually be preferred.

Our appellate courts may find bifurcation generally ill-advised. The solution is to fix appellate procedure.

One thought on The appellate courts “may find bifurcation in family court is generally ill-advised”; I don’t

  1. Thomas F. McDow says:

    Greg: it was once common to bifurcate the trial and grant the divorce while postponing other issues until later. The problem with that is the divorce was not a final decree. In Sexton v. Sexton, 308 S.C. 37, 39–40, 416 S.E.2d 649, 651 (Ct. App. 1992), rev’d, 310 S.C. 501, 427 S.E.2d 665 (1993), the court granted some relief while bifurcating other issues. The Court of Appeals held, “The husband first asserts the trial judge erred in finding the October 1988 order was unappealed and res judicata. We agree. It is clear the October 1988 order either reserved for later determination or did not address several issues. The October 1988 order was not immediately appealable because it did not dispose of the whole subject matter in litigation. Bolding v. Bolding, 283 S.C. 501, 323 S.E.2d 535 (Ct.App.1984)
    If I were to make a list of the ten most important South Carolina family law cases, I would include Bolding.

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