New California Family Code 217 – Fictions about the Alleged Increase in the Cost of Divorce
With this new year of 2011, many news articles declare that the cost of divorce cases will increase in San Diego County due to new Family Code 217, which requires oral testimony in family law proceedings. Some “experts” claim that this new law will cause all hearings to be conducted like trials, with no declarations, which will thereby cause the cost to litigate a case to increase substantially. The reality is that the cost of obtaining a divorce (or dissolution of marriage) in San Diego likely will not change much, if at all.
First, parties to dissolution actions may work together to reach agreements outside of court on issues such as child custody and visitation, support, and the division of assets and debts.
Second, the Court may easily find that good cause exists to refuse to receive oral testimony. For example, if parties submit written declarations a court may substantiate a ruling denying oral testimony based on the fact that no additional new information will arise from such testimony. The San Diego Local Rules require written declarations in all family law motion hearings.
Finally, the term “live, competent testimony” is subjective and may not entail significant time at all. For example, a family law judge may simply and quickly swear in parties, ask questions pertaining to issues the judge needs answered to understand a parties’ position or argument, and that will likely meet the requirements of the statute.
California Family Code 217 states:
Hearing on motion; live, competent testimony to be received; refusal to hear testimony for good cause with written reasons; service of witness list
- (a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.
- (b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.
- (c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony. If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing.
While California Family Code 217 is certainly a new and interesting statute, it does not yet significantly change the landscape of family law or divorce cases, nor does it mean that obtaining a divorce will now be significantly more expensive.
In other local counties such as Orange County, family law judges and commissioners have long accepted live, oral testimony at hearings. Keep in mind that it is always more cost effective and faster to reach agreements to issues involved in a temporary motion filed by either party.
To discuss your matter with our family law experts, call us at (619) 284-4113 or email us today.