New Year, New Divorce Laws

Aug 8, 2012 by

Now that the New Year has arrived, obtaining a divorce in California may cost a bit more than it used to. As of January 1st, 2011, a new California law requires that all divorce hearings include oral testimony unless both spouses specifically waive the right, and the resulting additional court time in front of a judge could cost all sides in a dispute quite a bit more money.

Assembly Bill 939, known as the “Elkins Legislation” came about as the result of a 2005 divorce in Northern California, where 34 of the husband’s written exhibits were excluded from the proceedings. Later, Mr. Elkins sued to get his documents into court and won his case. The result is that now everyone getting a divorce in California has the right to speak their case in court, in front of the judge. Statements that used to be submitted to the court on paper will now become oral testimony, and the ruling covers all testimony, not just that of the two spouses. Testimony from witnesses, friends and relatives will all have to be heard and a typical one-hour hearing could soon become a typical three-day hearing.

The law may be well-intentioned, but it will have unintended consequence of making the use of attorneys more costly to both side in a divorce. It also means that the currently heavily burdened California court system will only get more overwhelmed and behind schedule. Oral testimonies take time and cases that are currently a couple of weeks or a month behind schedule could easily become several months behind schedule. The courts may also have to increase the number of judges, clerks and related staff.

Right now it is too early to tell exactly how the law change will affect California courtrooms, but the higher costs may have the effect of motivating couples to try a little harder to save their marriages. Unhappy couples can minimize the negative impacts of courtroom delays caused by the new law by agreeing to try mediation or other alternative dispute resolution methods like therapy, arbitration, or even a trial separation. If the main unintended consequence of California AB 939 turns out to be that more divorce cases are settled between parties on their own without drawn-out battles in court, it might be a change that benefits everyone involved.

 

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