BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1406 (Committee on Judiciary)
As Amended June 6, 2012
Hearing Date: June 19, 2012
Fiscal: No
Urgency: No
NR
SUBJECT
Dissolution of Marriage: Proceedings
DESCRIPTION
Existing law requires each party to a dissolution proceeding to
serve on the other party a preliminary declaration of disclosure
of assets after or concurrently with service of the petition for
dissolution.
This bill would require the petitioner to serve the preliminary
declaration of disclosure either concurrently or within 60 days
of filing the petition, and would require the respondent to
serve the other party concurrently with the response to the
petition or within 60 days of filing the response. This bill
would allow for those time periods to be extended by written
agreement of the parties or by court order. The bill also would
require the preliminary declaration of disclosure of assets to
include all tax returns filed by the declarant within the two
years prior to the date that the party served the declaration.
This bill would also make clarifying changes regarding attorney
fee awards and minor's counsel.
BACKGROUND
The Elkins Family Law Task Force, chaired by Associate Justice
Laurie D. Zelon of the Court of Appeal, Second Appellate
District, Division Seven, was appointed in May 2008 for the
purpose of conducting a comprehensive review of family law
proceedings in order to make recommendations to the Judicial
Council that would increase access to justice for family law
(more)
AB 1406 (Committee on Judiciary)
Page 2 of ?
litigants; ensure fairness and due process; and provide for more
effective and consistent family law rules, policies, and
procedures. The task force was formed at the suggestion of the
California Supreme Court in Elkins v. Superior Court (2007) 41
Cal.4th 1369.
The task force conducted a comprehensive review of family courts
through in-person meetings, conference calls, and outreach to
family court stakeholders and litigants. The final report
contains twenty-one main recommendations; the Judicial Council
accepted the report on April 23, 2010. (Hereinafter, Elkins
Report.) The final report can be found at (Elkins Family Law
Task Force: Final Report and Recommendations, (April 2010)
Judicial Council Ýas of June 11, 2012].)
While many of the Task Force's recommendations may be
implemented by the courts, whether through Rule of Court or even
informal policy change, others require statutory changes. In
2010, AB 939 (Committee on Judiciary, Chapter 352, Statutes of
2010) was enacted to implement most of the Elkins Task Force's
key legislative recommendations.
This bill would implement one additional change recommended by
the Elkins Task Force, and clarify two recommendations
implemented by AB 939. Specifically, this bill would set a
deadline for parties in a dissolution proceeding to serve the
required preliminary financial disclosure documents and would
also require the parties to include tax returns from the two
previous years. This bill would also extend the attorney fee
award standard created by the Task Force to fee awards in
paternity proceedings. Finally, this bill would eliminate the
requirement that a court consider a statement of issues and
contentions by minor's counsel.
CHANGES TO EXISTING LAW
1.Existing law provides that parties to a dissolution or legal
separation must serve on the other party a preliminary
declaration of disclosure of all assets and liabilities in
which one or both parties may have an interest. (Fam. Code
Sec. 2103.)
Existing law provides that the preliminary declaration of
disclosure of assets must be served after or concurrently with
service of the petition for dissolution of marriage or legal
separation of the parties, and must be signed under penalty of
AB 1406 (Committee on Judiciary)
Page 3 of ?
perjury. (Fam. Code Sec. 2104.)
Existing law prohibits the court from entering a judgment
regarding the parties' property rights in a dissolution
proceeding unless each party has submitted a final disclosure
declaration and a current income and expense declaration.
(Fam. Code Sec. 2106.)
Existing law provides for specified remedies if one party does
not serve the other party with the preliminary or final
declaration of disclosure. These remedies are only available
if the complying party served the noncomplying party. (Fam.
Code Sec. 2107.)
This bill would require preliminary disclosure declarations to
include all tax returns filed by the declarant within the two
years prior to the date that the declarant serves the
declaration.
This bill would require the petitioner to serve the other
party with the preliminary declaration of disclosure either
concurrently with the petition for dissolution, or within 60
days of filing the petition. This bill would require the
respondent to serve the other party with the preliminary
declaration of disclosure either concurrently with the
response to the petition, or within 60 days of filing the
response.
This bill would allow these time periods to be extended by
written agreement of the parties or by court order.
2.Existing law provides that an award of attorney's fees in
paternity cases shall be based on the respective income and
needs of the parties, and any factors affecting the parties'
ability to pay. (Fam. Code Sec. 7605.)
This bill would require the court, in any paternity proceeding
where one party has requested that the other party pay
attorney's fees, to make findings on whether an award of
attorney's fees is appropriate, whether there is a disparity
in access to retain counsel, and whether one party is able to
pay for legal representation for both parties before awarding
attorney's fees to a party.
3.Existing law provides that the court, in a custody or
visitation proceeding, may appoint minor's counsel if the
AB 1406 (Committee on Judiciary)
Page 4 of ?
appointment is in the best interest of the child. Minor's
counsel and the court must comply with specified rules of
court. Minor's counsel must serve notice and pleadings, and
present evidence consistent with requirements for parties.
(Fam. Code Secs. 3150-51.)
This bill would delete the requirement that a court consider a
statement of issues and contentions from minor's counsel.
COMMENT
1.Stated need for the bill
In support of this bill, the author writes:
AB 1406 makes three non-controversial and technical clean-up
changes to AB 939 (Judiciary). First, the bill applies the
attorney's fees standard developed by the Elkins Task Force
and established in AB 939 for dissolution, child support and
custody cases to paternity cases as well. Second, the bill
eliminates reference to a minor's counsel statement of issues
and contentions, which was eliminated by changes in AB 939
(Section 3151), but one section (Section 3151.5) was
inadvertently left unchanged. Finally, consistent with
Elkins, the bill requires that dissolution disclosure
documents include tax returns and that the preliminary
disclosure declaration be served by the petitioner within 60
days of filing of the petition and by the respondent within
60 days of filing of the response.
2.Time limits and tax returns imposed on disclosures in
dissolution proceedings
In its recommendations, the Task Force noted that, "Ýf]amily law
matters currently have no time standards for completion other
than a limitation that the parties to a dissolution of marriage
cannot be restored to the status of single persons until six
months have elapsed from the date of service." The Task Force
then recommended that the Judicial Council should adopt rules
setting out a framework for the timely disposition of family law
cases. The Task Force noted that these rules should recognize
that some cases need significantly more time than others because
of the complexity of the issues or desire of the parties to have
additional time to attempt reconciliation, but they should also
recognize that most litigants would like to have their matters
resolved promptly. (Elkins Report p. 25.)
AB 1406 (Committee on Judiciary)
Page 5 of ?
This bill would implement these recommendations and require each
party in a dissolution proceeding to serve the preliminary
disclosure of assets concurrently or within 60 days of the
petition or response, and would require the disclosure to
include tax returns from the previous two years. In support of
this bill, the Judicial Council argues this bill will improve
and streamline dissolution cases and assist self-represented
parties to this litigation. Specifically, the Judicial Council
argues that this bill:
Ýwould] improve the ability of the family courts to manage
the flow of dissolution cases and prevent unnecessary
litigation regarding financial discovery in these matters. ?
Currently many litigants file their petitions for dissolution
and then fail to take any action on them for significant
periods of time. By setting forth a clear timeframe for the
requirement that the parties serve a preliminary declaration
of financial disclosure, self-represented litigants will have
better information about the next steps in their case. ?
Moreover, much time is currently spent in family law arguing
about discovery matters that would be moot if the parties
simply complied with existing financial disclosure
requirements. Clarifying the timeframe for completion of
this disclosure, and the fact that it must include the last
two years tax returns, will obviate the need for much of this
litigation over discovery issues.
The Executive Committee of the Family Law Section of the State
Bar of California (FLEXCOM) also supports this bill, and argues
that it will function to "eliminate a necessary element of
discovery in many cases. ? The proposal will Ýtherefore]
streamline the process, reduce costs by eliminating additional
discovery, and provide impetus to litigants and counsel to
comply with disclosure laws not eventually, but timely."
At the suggestion of the Association of Certified Family Law
Specialists (ACFLS), this bill was amended in the Assembly to
allow in excess of 60 days by agreement of the parties or by
court order. The ACFLS argues that this exception would allow
litigants to stipulate to extend the time limit imposed by this
bill if circumstances so demand.
3.Changes consistent with Elkin's recommendations and existing
law
AB 1406 (Committee on Judiciary)
Page 6 of ?
This bill would also extend the Task Force recommendations
regarding needs-based attorney fees to paternity proceedings,
and eliminate a reference to a minor's counsel statement of
issues and contentions, a statement which was effectively
eliminated by the passage of AB 939 (Committee on Judiciary,
Chapter 352, Statutes of 2010.)
a) Attorney fee awards in paternity proceedings
Concerning accessibility to the courts, and needs-based
attorney fee awards, the Task Force concluded that:
Ýc]ases in which one side has counsel and the other does
not can pose a variety of potential difficulties for the
unrepresented litigant, attorney, and the judicial officer.
Representation may be available in more of these cases if
courts were to make early needs-based attorney fee awards.
The Judicial Council should adopt statewide rules regarding
the information that need to be submitted to the court to
obtain an award of attorney fees. Consistency in these
requirements would allow attorneys and self-represented
litigants seeking attorneys to provide the information
needed by the court for an award of attorney fees. (Elkins
Report pp. 59-60.)
AB 939 responded to the recommendation of the Task Force by
requiring, in child support, custody, and dissolution
proceedings, the court to determine whether the award of fees
is necessary, whether there is a disparity in access to funds
or income, and whether one party is able to pay for legal
representation of both parties. If the court determines that
there is a need, disparity in access and ability to pay, AB
939 requires that the court award attorney fees.
However, AB 939 failed to extend this standard to paternity
proceedings. Thus, under existing law attorney fees are
awarded in paternity cases based on the respective income and
needs of the parties, and any factors affecting the parties'
ability to pay. (Fam. Code Sec. 7605.) This bill, in keeping
with the Task Force recommendation for consistency, would
replace the current statutory considerations regarding
attorney fee awards in paternity cases, with the standard
developed by the Task Force and implemented by AB 939.
b) Statement of issues and contentions by minor's counsel
AB 1406 (Committee on Judiciary)
Page 7 of ?
Under existing law, a court may appoint minor's counsel in a
custody or visitation proceeding if the appointment is in the
best interest of the child. Prior to the passage of AB 939,
minor's counsel was required to provide the court with a
statement of issues and contentions. The Elkins Task Force
recommended that a minor's counsel never takes the place of a
mental health evaluator or assume the court's role of weighing
and determining the facts of the case. (Elkins Report, p.
54.) The Task Force also recommended that minor's counsel
fact-gathering should be presented to the court in the same
manner as other admissible evidence so that parties' due
process rights are protected.
In implementing these recommendations, AB 939 required minor's
counsel to comply with applicable rules of court, and present
admissible evidence in the same manner as counsel for a party.
AB 939 also eliminated the language authorizing the court to
request a statement of issues and contentions from minor's
counsel in one section of the Family Code, but failed to
eliminate this reference in the subsequent section. This bill
would resolve that inconsistency by repealing the code section
requiring a court to consider a statement of issues and
contentions by minor's counsel.
Support : Association of Certified Family Law Specialists
(ACFLS); Executive Committee of the Family Law Section of the
State Bar (FLEXCOM); Judicial Council of California
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : AB 939 (Committee on Judiciary, Chapter 352,
Statutes of 2010) made various changes to family law proceedings
thereby implementing a number of the legislative recommendations
issued by the Elkins Family Law Task Force.
Prior Vote :
Assembly Floor (Ayes 73, Noes 0)
AB 1406 (Committee on Judiciary)
Page 8 of ?
Assembly Judiciary Committee (Ayes 9, Noes 0)
**************