Enacted: FAMILY CODE Sections 3660-3668
The issue: Before this statute, any request for information from an ex-spouse required a motion to be filed. This was expensive for clients because of filing fees to the court and fees to the lawyer to
- the request for modification of an existing order, then
- the request for discovery of income and assets.
Frequently, the results of discovery did not warrant the additional expense. Alan’s proposal allows for the simple request (using a new form) for the information without the expense of filing a motion.
Discovery Before Commencing Modification or Termination Proceeding [3660 – 3668] A statute to permit inexpensive discovery of facts before the commencement of a proceeding for modification or termination of an order for child, family, or spousal support. (Enacted by Stats. 1992, Ch. 162, Sec. 10. Operative January 1, 1994.)
The issue: Awareness of domestic violence (DV) has been growing over the last 30 years. Once a family secret, it is not being swept under the carpet. Governmental departments and charitable organizations have established programs to transition victims from dangerous home situations to safe harbors. Even counseling programs are now stretched to the limits of their availability to provide services.
The tort of Domestic Violence has been codified in Civil Code Section 1708.6. But nothing has been done to effectively secure for the victim a reasonable opportunity to recover damages from the property of the tortfeasor.
In most cases, the tortfeasor (D) is the spouse or partner of the victim (P). Insurance is generally unavailable as damages, primarily because P and D are named insureds and therefor subject to a specific exclusion. That means that assets co-owned by the parties provide the best chance to obtain satisfaction of a judgment for damages. Unfortunately, tort cases and dissolution of marriage cases usually take place in different departments of the court and move at drastically different paces. This means that by the time P obtains a money judgment against D, a dissolution case will have been concluded, giving D the opportunity to dispose of assets that would have otherwise been available for the satisfaction of the judgment.
Summary of proposals:
- Amend Civil Code Section 1708.6 to provide for a preference for the consolidation of the dissolution and tort proceedings.
- Specifically include the equitable option of appointment of a receiver or trustee to take control of separate and/or community property of D pending resolution of the tort litigation.
- Amend the Code of Civil Procedure Section 404 to provide for the coordination / consolidation of civil actions, including actions pursuant to the Family Code.
- Amend the Evidence Code to allow the introduction in the DV tort case of convictions of D relating to same facts and same parties. This would go beyond mere “character” and create a presumption shifting the burden of proof from P to D.
- Amend the various Rules of Court consistent with the above stated principles.