Family Code 218 is not law yet. It will become law on January 1, 2015. What is it? Simply put, Family Code 218 is intended to overrule a decision called Marriage of Boblitt, which was decided in February of 2014 by the California Court of Appeal in Sacramento.
Leave it to those Northern California types to come up with this decision, right?
First, let’s look at some important background information to understand how we got here.
Common Practice Before Marriage of Boblitt and Family Code 218
California family law cases are unique from other civil matters in one respect – when a divorce or paternity case is over, it’s not always over. After the divorce or paternity judgment, a parent or ex spouse can file many different types of post judgment requests, the most common ones being for a modification of child custody, child support or modification or termination of spousal support.
But does a post judgment modification request open up the ability to serve subpoenas, interrogatories, requests to produce documents, take a deposition or other “discovery”?
Before the Marriage of Boblitt decision came down, it was common practice to do some or all the above, especially in the more complex family law cases. But the Boblitt ruling made new law without making new law – wait, what? Basically, the Boblitt case decided that existing California law including C.C.P. 2024.020 that applied to general civil cases applied to family law cases post judgment and without an agreement from the other side or a court order, there was no right to post judgment discovery.
The Boblitt decision made post judgment family law requests more cumbersome
That Boblitt decision made things complicated – real complicated. Now, when parties or lawyers filed post judgment family law modifications, the person opposing it rarely would agree to “open” discovery and often force the filing person go to Court and ask. And judges aren’t always sympathetic to allowing discovery.
This created a cluster of disputes and delays.
Family law lawyers complained. Family law judges had to deal with more congestion in the court room with motions to open discovery. The legislature took notice. Enter Family Code 218.
The legislature takes action and creates new Family Code 218
Unfortunately, the legislature kind of blew it. Here is how Family Code 218 will read when it is freshly printed in our code books:
Family Code 218. With respect to the ability to conduct formal discovery in family law proceedings, when a request for order or other motion is filed and served after entry of judgment, discovery shall automatically reopen as to the issues raised in the postjudgment pleadings currently before the court. The date initially set for trial of the action specified in subdivision (a) of Section 2024.020 of the Code of Civil Procedure shall mean the date the postjudgment proceeding is set for hearing on the motion or any continuance thereof, or evidentiary trial, whichever is later.
So, no more so-called Boblitt motions or Boblitt discovery disputes, right? Probably wrong. Here is the problem.
Does Family Code 218 create a different level of complication?
The words “as to the issues raised in the post judgment pleadings currently before the court” is an invitation for objections to discovery as being beyond the scope of the issues. Another angle is to object to the discovery because the “post judgment pleadings” raise issues without evidentiary support. There are more problems but every one of them will invite court action.
The second problem is setting the “date initially set for trial” as the date of the post judgment proceeding.
Most post judgment requests for order are set for hearing within 45 to 60 days. Discovery generally has to be done 30 days before trial when the case has not gone to judgment. That means with Family Code 218 relying on this initial date set for trial logic, it must generally be completed 30 days before the hearing. There are exceptions in the code to that 30 day rule.
Do you know how much time that leaves you to serve discovery? Pretty much none. Written discovery has a turnaround of 30 days in most cases. Depositions need 10 days notice if personally served on the other side or his or her lawyer. How is all of this going to get done 30 days before a hearing?
It’s either a tight squeeze or none at all. Hello discovery motions. Also hello setting hearings out for many months to allow for discovery to take place.
Family Code 218 should have been written far simpler than it was
Where I think the legislature made the mistake is by complicating Family Code 218. What is that? Our law makers overcomplicating laws? Please try to contain your shock.
Allowing discovery to open up after a post judgment family law request for order or motion was the right idea. And it could have simply stopped there. There was no reason to set a deadline for its completion. If discovery needs to be done, let the parties gets it done. And this whole thing with “issues raised by the post judgment pleadings” allows gamesmanship to enter the process by lawyers arguing over what issues were or were not raised properly or otherwise. Should have just left that out too and stated the initial date set for trial rule does not apply.
Had they left it out, things would have returned to how they were – 0pen discovery and letting the discovery statutes govern responses, motions to compel, protective orders, etc. Now, the California legislature has added layers to that. More law isn’t better law.
Do you have a post judgment family law request for order or motion with which you need help? Call our family law firm. Let’s talk about how we can help you.