BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1735|
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CONSENT
Bill No: AB 1735
Author: Waldron (R)
Amended: 4/21/16 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 6/14/16
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
ASSEMBLY FLOOR: 76-0, 5/2/16 (Consent) - See last page for
vote
SUBJECT: Dissolution of marriage: bifurcated judgment:
service
SOURCE: California Conference of Bar Associations
DIGEST: This bill requires, 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 requires service to be upon both the party and the attorney
of record.
ANALYSIS:
Existing law:
1)Provides that the attorney in an action may be changed at any
time before or after judgment or final determination, if
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Page 2
consented to by both the client and the attorney, and filed
with the clerk or entered into the minutes. (Code Civ. Proc.
Sec. 284.)
2)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.)
3)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.)
4)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.)
5)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 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
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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:
1)Creates 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 provides 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.
2)Provides 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.
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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified6/17/16)
California Conference of Bar Associations (source)
OPPOSITION: (Verified6/17/16)
None received
ARGUMENTS IN SUPPORT: 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.
ASSEMBLY FLOOR: 76-0, 5/2/16
AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker,
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Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke,
Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley,
Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier,
Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson,
Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Holden,
Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder,
Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina,
Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen,
Patterson, Quirk, Rodriguez, Salas, Santiago, Steinorth, Mark
Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Wood,
Rendon
NO VOTE RECORDED: Beth Gaines, Roger Hernández, Ridley-Thomas,
Williams
Prepared by:Nichole Rapier / JUD. / (916) 651-4113
6/17/16 15:03:40
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