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Recent Trends in Family Law in California

August 18, 2011

Part One in an ongoing series: Managing New Challenges in California Family Law Disputes

Unique aspects of practicing family law in California pertain to the fact that California is a community property state, and the community property must be split equally upon divorce. In contrast, many states only require that property acquired during the marriage be split equitably, or fairly, which may or may not result in a 50/50 division. Additionally, California is a no-fault divorce state; therefore, the divorcing couple does not have to air their dirty laundry in public.

In recent times, many California family court cases have been impacted by the creation of the Elkins task force, which was the result of a California Supreme Court decision, Elkins v. Superior Court, 41 Cal.4th 1337 (2007),aimed at restoring many of the civil rules of procedure and evidence to the family courts. For example, there is currenty a movement to limit the length of declarations in family law cases to ten pages, and to require oral testimony as well. While these changes may increase fairness through requiring the court to hear oral testimony and allowing witnesses to be cross-examined before the court, they may also decrease efficiency by limiting the out-of-court evidence the court may consider. Also, attorneys who represent children are now required to account for their recommendations and opinions, instead of simply rubberstamping what minors’ counsels have typically done in the past.

Implementing the requirements of the Elkins task force has been a time-consuming process. Elkins was decided in 2007, the Task Force issued its recommendations in 2009, and the last of the recommendations will not be adopted as law unti12012, over four years after Elkins was decided.

Finally, the recent budget cuts in California are limiting courtroom time for family law cases-which conflicts with the new requirements that there must be more evidence introduced in family law matters. Ultimately, I believe that it is going to be very difficult for family law litigants to have their cases heard in court on a timely basis. Consequently, mediation,collaboration, and other types of alternative or consensual dispute resolution programs will be an increasingly popular choice for those who cannot get their case tried in a courtroom.

-Joseph P. Spirito Jr.

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