The “Elkins Legislation” refers to a pair of bills, AB 1050 and AB 939 which became law on January 1, 2012. These laws change the role of evidence in divorce actions, increasing reliance on live oral testimony, and moving away from written testimony. This could increase costs by requiring more court hearings during a divorce action and could lengthen the divorce process by forcing already overworked family courts to take on a larger load of hearings.

Assembly Bill 939 makes a number of changes to California’s current Family Code, including changing the requirements for summary divorce and changing the way courts award attorney fees in divorces and related proceedings. More importantly, however, the new law gives each party the right to present relevant live testimony at a hearing before the court. The court may only refuse to receive live testimony upon a finding of good cause and after stating its reasons in the record. Assembly Bill 1050 alters the law to contain similar provisions regarding live testimony of children 14 years of age or older in custody or visitation matters.

There is no question that the legislature made these changes with the best of intentions, hoping to give courts access to a greater range and depth of relevant information when making the types of determinations that can have a lifelong impact on families and children. But the unfortunate side effect of both of these new laws is a higher cost and slower speed for divorce proceedings. Especially in the case of AB 939, this new right to present live testimony could conceivably become a weapon for unyielding spouses to increase costs and delay in bitter divorce proceedings.

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Last update of the article: 07/08/2020

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