Change in California Law Could Delay Divorce Proceedings in 2011
Fleischer & Ravreby says hearings will be harder to schedule and costs may increase
Thursday, December 30, 2010
(San Diego) – Individuals seeking divorces in 2011 will be affected by new laws passed in California that will significantly change family law proceedings. As a result, divorces requiring hearings in court are expected to take much longer and could cost the parties involved significantly more due to additional work required by attorneys.
Myra Chack Fleischer, lead counsel and Family Law Expert, Fleischer & Ravreby, says these changes are likely to come as a big surprise to most people filing for divorce in 2011. Fleischer says there are positive and negative aspects to the new rules, and divorcing couples can lessen the impact by seeking ways to stay out of the court system through mediation and alternative dispute resolution.
Fleischer says the major change focuses on oral testimony in court. “Previously, for most hearings before any trial, testimony is done in writing by declaration and submitted to the court. Starting on January 1, all hearings require oral testimony unless both parties specifically waive that right or a judge finds good cause not to have oral testimony. The definition ‘good cause’ is slated to come in another year. This will require everyone who previously signed declarations to testify which can include the divorcing couple as well as all of the third party witnesses which could be numerous.”
Fleischer says the law is well intentioned but will have unintended consequence. “Sometimes people need to have their voices heard by the system, and their credibility during testimony needs to be observed and judged. But our courts are already bogged down and we cannot get hearings for months. Oral testimony takes time and this will only serve to cause more delays.” Fleischer said this will also cost clients more making the use of attorneys more costly to the parties.
The new laws are the result of two Assembly Bills passed by the California State Legislature in 2010, AB 939 and AB 1050. One of the bills is referred to as “Elkins legislation” because it addresses issues arising from a 2007 California Supreme Court ruling, Elkins v. Superior Court 41, Cal. 4th 1337.
AB 939 adds Section 217 to the Family Code, which states that in any Order to Show Cause or Notice of Motion hearings, the court shall receive live testimony and the court may ask questions of the parties. It also requires as much as possible to keep a case with the same judge through its final judgment.
“This is sure to stress the system,” said Fleischer. “Governments are downsizing and cutting back. How will the courts find time for increased live testimony without delays unless they increase the number of courts, judges, and staff?”
AB 1050 amends Family Code Section 3042, which now requires the family court to consider and give weight to the preference of children when granting or modifying child custody or visitation, as long as the child involved is old enough and capable of forming an intelligent opinion; and to require the court to permit a child 14 years of age or over to address the court regarding custody or visitation.
“These changes will have a huge effect if you need a support or child custody order, as it will take longer to get a court hearing,” said Fleischer.
Fleischer says the best step individuals can take to mitigate the negative impact of delays that may be caused by this new legislation is to agree to mediation or alternative dispute resolution. “Get yourself out of the court system if you can,” said Fleischer. “It will be full of delays. If you want to get your case done more quickly, you need to find alternatives.
“If the effect of Elkins legislation in the long run is to keep more divorces cases out of the court and settled amicably among the parties without a long, drawn-out fight, it’s better for everyone involved on so many levels,” said Fleischer.