BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 402|
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THIRD READING
Bill No: AB 402
Author: Dymally (D)
Amended: 8/7/06 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-0, 6/27/06
AYES: Dunn, Escutia, Harman
NO VOTE RECORDED: Morrow, Kuehl
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : Not relevant
SUBJECT : Collaborative Family Law Act
SOURCE : Author
DIGEST : This bill enacts the Collaborative Family Law
Act, which both: (1) codifies the ability for individuals
to participate in a collaborative process for dissolution
or nullity of marriage or legal separation, and (2)
prevents a court from setting hearings, trials, imposing
discovery deadlines, requiring compliance with pretrial
orders or dismissing the case if parties notify the court
of their participation in a collaborative process 30 days
prior to trial.
This bill also enacts provisions to allow parties to a
child custody proceeding to request a written statement of
the decision containing its factual and legal basis, define
CONTINUED
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penalties for violation of a custody order, and require the
Judicial Council to create an information sheet for parties
involved in child custody and visitation matters.
ANALYSIS : Existing law grants courts jurisdiction to
inquire into and render judgments and orders concerning the
status of marriage, custody of minor children, child and
spousal support, settlement of property rights, and awards
of attorney's fees and costs.
This bill prevents a court, except for good cause, from
setting hearings, imposing discovery deadlines, requiring
compliance with pretrial orders or dismissing the case when
notified at least 30 days before trial that the parties are
using a collaborative law process.
This bill defines termination of the collaborative law
process as execution of a written settlement agreement by
the parties that fully resolves the dispute, notification
by a party in writing that the collaborative process is
terminated, or by the filing of an adversary judicial
intervention.
Existing law allows parties to enter into a collaborative
process for property division by allowing division of the
community estate through written agreement or oral
stipulation in open court. [ In re Marriage of Cream (1993)
13 Cal.App.4th 81, 87; Fam. Code Section 2554.]
This bill codifies the ability for parties to enter into an
agreement to utilize a collaborative law process to resolve
any matter relating to dissolution or nullity of marriage
or legal separation, including custody, support, property
division and attorneys' fees. That collaborative law
agreement would include provisions that:
1.Suspend court intervention in the dispute;
2.Jointly hire mental health, financial, or other
professionals;
3.Full, candid disclosure of all information including
assets and liabilities
4.attorneys, and all other professionals involved, must
withdraw if the dispute is not settled through the
process; and
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5.Expectation that parties and attorneys proceed in good
faith.
This bill deems written agreements entered into by the
parties to be admissible in court. All other statements,
communications, and work product would be inadmissible in
arbitration, administrative adjudication, other
collaborative law processes, or other non-criminal
proceeding in which testimony can be compelled, except by
written agreement. This bill additionally provides that
any statement, admission, or writing that is inadmissible,
protected from disclosure and confidential under the bill
during the collaborative law process remains confidential
and protected from disclosure after termination of the
process.
This bill requires the Judicial Council to create a
statewide information sheet for parties involved in child
custody and visitation matters that informs them of their
options regarding mediation, court involvement, and
resources.
Existing law allows a family law court to make an order for
the custody of a child, as necessary and proper, during the
pendency of a proceeding. Existing law requires a superior
court, upon the request of either party, to issue a
statement explaining the factual and legal basis for its
decision.
This bill requires a family law court, upon the request of
either party, to issue a statement explaining the factual
and legal basis for its decision.
This bill would state that violation of a child custody
order issued by a family law court may be contempt of court
and subject to imprisonment, a fine, or both imprisonment
and a fine. This bill specifically allows the court to
take any other actions within the scope of its authority
regarding custody and visitation, to enforce that order.
This bill provides that nothing in this bill shall be
construed to restrict the jurisdiction of the court,
including any local rules of court over this matter.
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The court may impose sanctions under any applicable law if
any party or any attorney has done any of the following:
1.Used the collaborative law process in bad faith for the
purpose of unilateral delay.
2.Engaged in any concealment, misrepresentation, or
perpetuation of the collaborative law process in any way
that materially adversely affected the right of the other
party.
3.Engaged in conduct that comes within the provisions of
any law providing for the imposition of sanctions.
Prior Legislation
SB 1603 (Oller, 2002), would have enacted similar
provisions concerning the collaborative law process. This
bill was referred to the Senate Judiciary Committee and was
never heard.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/9/06)
Collaborative Council of the Redwood Empire
Collaborative Divorce Solutions
Collaborative Practice California
Executive Committee of the Family Law Section of the Los
Angeles County Bar Association
Family Law Section of the State Bar of California
Los Angeles Collaborative Family Law Association
Sacramento Collaborative Practice Group
ARGUMENTS IN SUPPORT : According to the author's office,
this bill would "recogniz[e] and encourage[e] the process
of collaborative law as a legitimate means by which to
resolve and complete dissolution proceedings." The
collaborative law process, according to the author, seeks
to "maximize settlement options for the benefit of both
parties and children and to minimize or eliminate the
negative economic, social and emotional consequences of
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litigation."
Accordingly, the author contends that if this bill is
enacted, "more practitioners will look to the collaborative
model and the judiciary will put their weight of approval
behind the process. Having such a statute in California
will give this method of resolving a dissolution
legitimacy, which will insure judges support it and
encourage more practitioners to use it."
Echoing those same comments, one supporter states that
"[t]hose of us who use [Collaborative Practice] to resolve
conflict had hoped that this statute would help to
normalize and legitimize [Collaborative Practice], in much
the same way as the adoption of mandatory mediation of
custody disputes helped make mediation a well-accepted
dispute resolution mode." The Family Law Section of the
State Bar, supporter, further states that "[i]t is believed
that if this statute was in place, more practitioners will
look to the collaborative model and the judiciary will put
their weight of approval behind the process."
RJG:nl 8/10/06 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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