I saw that the court is now charging the requesting party for a court interpreter for Family Law matters in Long Beach. This does not include hearings on Domestic Violence Restraining Orders. The court in Compton also charges for use of an interpreter and requires parties to use the court interpreter. Due to budget cuts the courts are less willing to let these type of fees slip through the cracks. See my website for the filing fees.
Attorney B. Stuart Walker
AB 939 will take effect on January 1, of 2011. It constitutes an effort by family law stake holders (judiciary, family law professionals, interested public, and legislators), to resolve two competing interests.
The primary interest, identified by California’s Supreme Court in the case, Elkins v. Superior Court, is that litigants, (especially self-represented litigants) should have their day in court. i.e. the court should hear the parties & witness testimony at the initial and subsequent Order to Show Cause hearings. These are the hearings that often have the practical effect of permanently determining the issues of child custody, support and the parties access to funds from which to pay an attorney. sharing the cost of attorney fees, for the rest of the case. Currently the courts rely on party and witness written declarations and to a greater or lesser extent prevent testimony of parties and witnesses.
The other, and in my opinion, equally important goal is that the parties family law issues are resolved expeditiously and efficiently. Because of the complex procedural requirements in California Family Law many case drag on for years. It is not unusual for parties to discover that the divorce that they believed was completed years ago, was in fact dismissed by the court for procedural defects.
Below are what I consider the significant changes to the California Family Code.
- The post judgment requirement for personal service of the opposing party when modifying custody, visitation or child support has been removed.
- Absent a showing of good cause or stipulation of the parties, the court must receive the testimony of parties and noticed witnesses.
- Upon a request for attorney fees the court is required to make a finding as to appropriateness, disparity in income, and ability to pay. Court Rule and form to be adopted by January 2012.
- The eligibility for parties to file for summary dissolution (divorce), rather than the normal divorce is changed from marriages lasting no longer than five years from the date of marriage to the date of filing to marriages lasting no longer than five years from the date of marriage to the date of separation. Other requirements, (e.g. no children, no real estate) remain unchanged.
- Allows the court to grant a summary dissolution after six months from the date of filing of the petition without an application from one of the parties. Parties retain right to revoke joint petition prior to grant of summary dissolution.
- Mandates that minor’s counsel present the child’s wishes to the court upon request of the child. Court and counsel must follow existing codified duties of minor’s counsel.
- Court may accept a stipulated judgment of Paternity in a protective (restraining) order proceeding.
- If there are orders for custody, visitation or support in the restraining order, those orders will survive the expiration of the restraining order.
- The court may refer all allegations of child abuse to the local child protection agency. Child welfare agency to make child records available to cognizant judges and attorneys in family and probate guardianship cases.
One of the anachronisms currently built into our Family Code is California Family Code Section 7643. This is the section that requires a level of secrecy in child custody and/or child support cases involving unmarried or single parents that is not required in cases involving married or formerly married parents. This is a law seemingly made for times when the stigma of illegitimate birth was a genuine issue for those born out of wedlock. Today however, I suspect even the terms “illegitimate birth” and “born out of wedlock” have no meaning to all but the oldest among us.
The practical effect of this law is to add to the expense, complication and frustration of a process that can be challenging to even the most reasonable parents. Unlike divorced or divorcing parents, unmarried parents and their attorneys are not allowed to access records of previous actions or upcoming court hearings online. Reviewing case records at the court house requires a party or his or her attorney to prove their identity and in the case of an attorney, prove that they are the attorney of record.
The section reads as follows:
§ 7643. Confidentiality of hearings and records
(a) Notwithstanding any other law concerning public hearings and records, a hearing or trial held under this part may be held in closed court without admittance of any person other than those necessary to the action or proceeding. Except as provided in subdivision (b), all papers and records, other than the final judgment, pertaining to the action or proceeding, whether part of the permanent record of the court or of a file in a public agency or elsewhere, are subject to inspection and copying only in exceptional cases upon an order of the court for good cause shown.
(b) Papers and records pertaining to the action or proceeding that are part of the permanent record of the court are subject to inspection and copying by the parties to the action, their attorneys, and by agents acting pursuant to written authorization from the parties to the action or their attorneys. An attorney shall obtain the consent of the party to the action prior to authorizing an agent to inspect and copy the permanent record. An attorney shall also state on the written authorization that he or she has obtained the consent of the party to authorize an agent to inspect and copy the permanent record.
This issue has been news lately in the Paternity Case between unmarried parents, Oksana Grigorieva and Mel Gibson, due to the leaking of court records in violation of, among other things, this code section.
This is just one of the anachronisms present in our California Code Sections. I’ll address the inefficiencies resulting from the requirements to give public notice (change of name) in newspapers in a later post.
Starting in 2011, if less than five years went by between the date you married and the date of separation then you may qualify for this perhaps more simple and inexpensive form of agreed upon divorce. (Only one filing fee is required and both parties sign the agreement that becomes the judgment). This is true even if it has been years since you separated. This type of divorce allows you both to agree on dividing the community property and debts. Most people do not use this method for divorce. This is due to the prohibition on having children, real estate, separate or community assets greater than $41,000 (excluding cars), or more that $6000 in community debt. Both parties must waive their right to spousal support in this type of divorce.
The above restrictions do not apply to an uncontested divorce. But, there is still only one filing fee, both and both parties sign the stipulated judgment. The paperwork required however is somewhat more complicated than that required for a Summary dissolution. See the Uncontested Divorce and Paternity page for more information. This is one of the services we provide for a fixed fee.
Los Angeles County
There is now a down side for filing for a change of name in downtown Los Angeles (Stanley Mosk) as opposed to filing in the cognizant branch court house. The down side is that the court will not hear your petition for a name change for approximately one year; – and the time period is getting longer and longer with every filing. However the up side is still there. An attorney can represent you without the need for you to appear and as often as not the attorney does not need to appear either.
If you need a name change processed more quickly, (approximately ten weeks on average) then your name change should be filed in the cognizant local court house. The down side to this is that you will probably have to appear at the hearing and I will charge more to represent you depending on which courthouse you need to file in.
Name changes have moved from the Lamoreaux Justice Center in Orange to the Central Justice Center in Santa Ana. Additionally, name changes are now handled by the Civil Division rather than the Probate Division. Also, the last time I was in Orange County for a name change; name changes without objections were handled in the clerks office rather than in the court room. The client does not need to appear with me at the window, but if the court questions the change then an appearance by the client that day or on a continued date may still be necessary. So far the court has not had questions about the name changes submitted. The time frame is still the same (approximately 10 weeks). For more information see the Name Change Page.
California Supreme Court Date of Separation Decision
In re Davis
In a decision filed July 20, 2015, the California Supreme Court held in Marriage of Davis, that a married couple cannot be considered legally separated when they live together in the same home. The court came to this decision despite acknowledging that their perhaps are sound policy reasons for allowing couples who cannot afford to physically separate to establish a date of separation while still living together. The court opined that if such policy reasons exist, it is for the legislature to enact changes to the Family Code. Meanwhile, couples living together awaiting divorce will have to deal with the complication that all their income continues to be community property right up until a judgment of divorce is granted.
Up until Davis, if one party was living beyond their means after the date of separation; the expenditures were considered separate debt. Prior to Davis the date of separation was the date one or both parties manifested their irrevocable commitment to end the marriage. But now, under Davis, the spendthrift party’s spending is community debts right up until the granting of a divorce judgment. Even the automatic temporary restraining orders (ATRO’s), do not prevent this result.
Note: ATRO’s come into affect with the serving of the divorce summons and prohibit either party from financial transactions that are not made in the usual course of business without permission of the court or the other party.
Governor Brown signs Senate Bill 1255 superseding court’s ruling in Marriage of Davis
As a result of Senate Bill 1255 being passed by the legislature and signed into law by the governor it is no longer required that married couples live “separate and apart” in order to establish their date of separation. This law will affect all cases after January 1 2017 and any case pending as of January 1 2017.