Family Law

Divorce, California style, could take longer and cost more because of new state laws that went into effect at the start of the year, according to a family law attorney with offices in Beverly Hills and San Diego.

The changes are likely to come as a big surprise to most people filing for divorce in 2011, said Myra Chack Fleischer of Fleischer & Associates.

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, she said.

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," Fleischer said. "Starting on Jan. 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 said the law is well-intentioned but will have unintended consequences.

"Sometimes people need to have their voices heard by the system, and their credibility during testimony needs to be observed and judged," Fleischer said. "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 make the use of attorneys more costly to the parties.

The new laws are the result of Assembly Bills 939 and 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 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 said the best step individuals can take to mitigate the negative impact of delays that may be caused by the new law 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," she said.

Please click here for the original article from dailybreeze.com.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.