BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 1735 (Waldron)
Version: April 21, 2016
Hearing Date: June 14, 2016
Fiscal: No
Urgency: No
NR
SUBJECT
Dissolution of marriage: bifurcated judgment: service
DESCRIPTION
When there is a modification of a judgment or order, or a
subsequent order, in a proceeding relating to marriage, existing
law requires that service for the new order or proceeding be
made upon the party, and specifies that service upon the
attorney of record is not sufficient.
This bill would require, in cases where issues have been
bifurcated for separate trial, that service be on the attorney
record for represented parties or on the parties themselves if
unrepresented. In actions where a pleading has not been filed in
the six months after the entry of a bifurcated judgment, this
bill would require service to be upon both the party and the
attorney of record.
BACKGROUND
In contested divorces involving complex issues, such as property
or custody disputes, it may take years before a divorce is
finalized. Bifurcation of a divorce proceeding allows a court
to issue a judgment of dissolution as to marital status only,
thereby preserving the other issues (e.g., custody and
visitation of minor children, economic rights, community
property interests, healthcare rights, and retirement interests)
until those matters are heard and division of the community
assets is finally adjudged. Bifurcation is most common when one
or both parties want to remarry prior to the divorce being
finalized.
This bill, sponsored by the California Commission of Bar
Associations, seeks to clarify notice requirements related to
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the outstanding issues when parties have been granted
bifurcation in a dissolution proceeding.
CHANGES TO EXISTING LAW
Existing law provides that the attorney in an action may be
changed at any time before or after judgment or final
determination, if consented to by both the client and the
attorney, and filed with the clerk or entered into the minutes.
(Code Civ. Proc. Sec. 284.)
Existing law provides that, when an attorney is changed, as
provided above, written notice of the change and of the
substitution of a new attorney, or of the appearance of the
party in person, must be given to the adverse party. Until then
he must recognize the former attorney. (Code Civ. Proc. Sec.
285.)
Existing law provides that an attorney of record for any party
in any civil action or proceeding for dissolution of marriage,
legal separation, or for a declaration of void or voidable
marriage, or for the support, maintenance or custody of minor
children may withdraw at any time subsequent to the time when
any judgment in such action or proceeding, other than an
interlocutory judgment, becomes final, and prior to service upon
a party of pleadings or motion papers in any proceeding then
pending in said cause, by filing a notice of withdrawal. Such
notice shall state: (a) date of entry of final decree or
judgment; (b) the last known address of such party;and (c) that
such attorney withdraws as attorney for such party. A copy of
such notice shall be mailed to such party at his last known
address and shall be served upon the adverse party. (Code Civ.
Proc. Sec. 285.1.)
Existing Professional Rule of Conduct prohibits an attorney from
communicating directly or indirectly with a party he or she
knows to be represented by another lawyer in the matter, unless
the attorney has the consent of the other lawyer. (California
Rules of Professional Conduct, 2-100.)
Existing law requires that after entry of a judgment or
permanent order, as specified, under the Family Code, no
modification of the judgment or order, and no subsequent order
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in the proceedings, is valid unless prior notice is served upon
the party. Existing law additionally provides that for the
purposes of this requirement, service upon the attorney of
record is not sufficient, and allows for notice to modify an
order to be served on a party by first-class mail or airmail,
postage prepaid, with an address verification. (Fam. Code Sec.
215.)
This bill would create an exception to the provision immediately
above by allowing service upon the attorney of record in matters
where a court has ordered an issue or issues bifurcated for
separate trial in advance of the disposition of the entire case.
Specifically, this bill would provide that service of a motion
on any outstanding matter shall be served either upon the
attorney of record, if the parties are represented, or upon the
parties, if unrepresented.
This bill would provide that, in the event that no pleading has
been filed in the action for a period of six months after the
entry of the bifurcated judgment, service shall be upon both the
party, at the party's last known address, and the attorney of
record.
COMMENT
1.Stated need for the bill
According to the author:
In bifurcated judgment cases, the judgment resolves just one
aspect of the case, often dissolution, and the matter still
must proceed to a final judgment on one or more additional
issues - e.g., property allocation, support, custody, etc. In
these cases, service on the non-moving party, and not on his
or her attorney, as would otherwise be required, increases
confusion and costs. It also may cause some motions to "fall
through the cracks" in that the parties may not notify counsel
of receipt of these time sensitive documents in a timely
manner, if counsel is notified at all.
2.Court may retain jurisdiction over family law issues for many
years
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A "final" judgment in a family law action does not necessarily
mark the end of litigation between the parties. With the
exception of a property division adjudicated by a final
judgment, many family court orders are "modifiable" and are
often modified long after the judgment's finality. For example,
the family law court's jurisdiction to issue or modify child
support orders in a marital action continues until the child
reaches majority and independent of any reservation of
jurisdiction. In effect, for child support purposes, a
dissolution action remains pending throughout the child's
minority as a matter of law. (Marriage of Armato (2010) 88 CA4th
1030, 1042.) In addition, child custody and visitation orders
are modifiable whenever the court finds that a modification is
"necessary and proper" in the child's best interests. Thus,
even after entry of the underlying dissolution judgment, custody
and visitation matters remain pending. (Marriage of Kriess
(2004) 122CA4th 1082, 1085.) Similarly, spousal support awards
and agreements, temporary as well as permanent, are modifiable
throughout the support period except as otherwise provided by
the parties. (Marriage of Hibbard (2013) 212 CA4th 1007, 1013.)
Despite the ability to modify family law orders for many years,
it is not uncommon for a client and attorney to terminate their
relationship after the initial orders related to the dissolution
are issued. Parties may then retain counsel (be it the same, or
a different, attorney) if modification of an order is sought.
Because of the cost of litigation, it is also common for a party
to terminate his or her relationship with an attorney before all
of the separate family law issues are resolved and represent him
or herself. In fact, the vast majority of family law cases in
California contain at least one party who is unrepresented.
Existing law recognizes this and provides for notice and
procedures an attorney must follow when withdrawing from a case
or when a client decides to hire a new attorney (see Comment 4).
This bill, by additionally providing for the situation where no
pleading has been filed in a bifurcated trial in six months,
appropriately acknowledges the reality that whether a family law
litigant is represented in a particular matter is, to a large
degree, fluid. By requiring, when six months or more has
elapsed, that both the party and his or her attorney of record
are served notice of a proceeding, this bill will likely ensure
that the party actually receives notice and therefore will have
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a fair opportunity to defend his or her interests.
3.Attorneys are prohibited from contacting a represented party
directly in a matter
Existing Professional Rule of Conduct prohibits an attorney from
communicating directly or indirectly with a party he or she
knows to be represented by another lawyer in a matter, unless
the attorney first has the consent of the other lawyer, and
violation of this rule may subject an attorney to disciplinary
action by the State Bar (California Rules of Professional
Conduct, 2-100).
Yet, as described in Comment 2 above, because family law orders
are modifiable for many years, serving notice of a modification
on an attorney years after an order has been issued, may be
problematic if that attorney no longer represents the client.
Accordingly, the Family Code provides that "no modification of
the [family law] judgment or order, and no subsequent order in
the proceedings, is valid unless any prior notice [?] is served,
in the same manner as the notice is otherwise permitted by law
to be served, upon the party. For the purposes of this section,
service upon the attorney of record is not sufficient." (Fam.
Code Sec. 215.)
Thus, one rule prohibits an attorney from contacting a party
directly, while another one requires it. With regard to a
bifurcated trial where the dissolution is determined prior to
the other family law issues, these laws arguably require a
violation of one or the other by an attorney. Resolving this
conflict, this bill would clarify that service of a motion on
any outstanding matter in a bifurcated trial shall be served
upon the attorney of record, if the parties are represented.
The author writes that this would "clarify that motions filed
after an entry of judgment on a single, bifurcated issue must be
continue to be served as before entry of the bifurcated judgment
(either to counsel or to the party if the party is
self-represented) and not solely on the party as provided in
Section 215. The bill will clarify the law, to avoid confusion
about service, and ensure that attorneys are not required to
violate the ethical rule that prohibits direct communication
with a represented party."
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4.Attorneys are required to notify the court and the opposing
party in the event of withdrawal or change of counsel
Existing law established the process by which an attorney may
withdraw from a case, or a client may hire new counsel, and
provides for notice of the action to be given to the court and
the opposing party. Specifically, an attorney in an action may
be changed at any time if consented to by both the client and
the attorney, and filed with the clerk or entered into the
minutes. When an attorney is changed, written notice of the
change and of the substitution of a new attorney, or of the
appearance of the party in person, must be given to the adverse
party. Until then, the adverse party must recognize the former
attorney. (Code Civ. Proc. Secs. 284 and 285.). In addition, an
attorney in any civil action or family law proceeding may, at
any time subsequent to the judgment, other than an interlocutory
judgment, and prior to service of pleadings or motion papers in
any proceeding then pending in said cause, withdraw by filing a
notice of withdrawal. The attorney must mail a copy of the
withdrawal to his client and a copy shall also be served on the
adverse party. (Code Civ. Proc. Sec. 285.1.)
Thus, existing law contains protections to ensure that parties
and the court are notified when the opposing party fails to be
represented by an attorney. Accordingly, parties and counsel
should arguably be able to comply with the provisions of this
bill, which require service upon either the opposing party or
his or her attorney in a bifurcated trial, depending on whether
the party is represented.
Support : None Known
Opposition : None Known
HISTORY
Source : California Conference of Bar Associations
Related Pending Legislation : None Known
Prior Legislation : AB 939 (Committee on Judiciary, Ch. 352,
Stats. 2010) made various changes to family law proceedings
thereby implementing a number of recommendations issued by the
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Elkins Family Law Task Force, including requiring that a
post-judgment motion to modify a custody, visitation, or child
support order may be served on the opposing parties by
first-class mail, provided the proof of service includes an
address verification.
Prior Vote :
Assembly Floor (Ayes 76, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)