Right to Verbal Testimony in California Divorce Cases

CBS News reported that it expects Assembly Bill 939 (also called Elkins Legislation named after a landmark 2007 California case) to drive California divorce costs even higher.  Under this relatively new bill, California courts must hear oral testimonies unless both parties agree not to provide them.  The concern is that relatively short court hearings that lasted under an hour now instead could take hours, which would also drag out the divorce process and incur greater legal expenses.  Previously, the courts required that all testimonies to be submitted as written statements.

Case backlogs are substantial in California courts.  The Los Angeles Superior Court alone reports it has approximately 100,000 divorce filings a year.

The Eklins v. Superior Court case involved marital property division between Jeffrey Elkins and his former spouse.  Mr. Elkin’s written statements failed to establish evidence for 34 out of his 36 court exhibits.  However, the California Superior Court’s rule against verbal testimony prevented him from presenting his side of the case.  Consequently, the Superior Court had ruled in his former spouse’s favor based on the admitted statements about the two exhibits.

Elkins appealed to the California Supreme Court arguing that the court had denied him due process.  The local bar association supported Mr. Elkin, who was a self-represented litigant, and argued that attorneys who were required to prepare the testimonial paperwork spent far more time on paperwork than presenting the case in court.  They argued that this paperwork drove up legal fees and fewer people could afford legal representation.  The California Supreme Court found in 2007 that the local rule was in conflict with statutory law.  It ruled that divorce trials should follow the same rules as other civil trials and not subject family law litigants to second class status or deprive them of justice.