Parties to Family Law and Divorce Litigation Are Now

Required to "Meet and Confer" Before Hearings

In the never ending struggle to force family law litigants to stop the bickering and attempt to settle their disputes without the necessity of a family court hearing, the California Judicial Council issued new CRC Rule 5.98 effective January 1, 2013. Rule 5.98 obligates attorneys or self-represented parties to get on the phone or meet in person at some point in time prior to a hearing, in a "good faith attempt" to settle "all issues" - "even if a complete settlement is not possible" - i.e., even if it is a complete waste of time. Letters or emails won't suffice. At the same time or before, they must exchange any documents they intend to show the court that have not already been filed or provided the other party, except such documents that will be submitted for "rebuttal or impeachment purposes."

Expect to see this section revised in coming years to add the teeth it presently lacks, since the governmental trend is strongly in favor imposing the burdens (and expense) of resolving cases upon the litigants and their attorneys themselves, and relieving the work load of family court bench officers. In its present form, Rule 5.98 only empowers judges to refuse to consider documents that were not exchanged prior to the hearing - assuming that at least one of the two sides tried to comply with this Rule and set such a meeting. If both ignore it, it is hard to imagine that either will have a basis to gripe at the hearing if surprised or ambushed by documents they've not seen before, although it is possible that some outlying judges might refuse to consider such papers if both try to overwhelm the court with new exhibits at the last moment and neither has attempted this meet and confer.

Speaking of ambush, however, the big exception regarding document exchange concerns documents submitted for "rebuttal" or "impreachment" purposes. Much could arguably satisfy this definition, since family law litigants tend to feel that every document or item they possess proves the other is a liar. And "rebuttal" could simply include documents that someone couldn't get filed in response to the other's pleadings - as with a party responding to an RFO who is only entitled to a "responsive declaration," and who must suffer the indignity of then receiving a "reply declaration" without the ability to file a further response to that pleading.

Meet and confer is always a good idea, and it is surprising what can sometimes be accomplished with a simple phone call. If one side attempts to follow the rule without success, because the other won't participate, a good record of these attempts may later serve as a foundation for a request for Family Code section 271 sanctions - i.e., for failure to cooperate and conduct that drives up the costs of the case. There are so many parties, and even more attorneys it seems (and not only the dreaded "Los Angeles" attorney), who only pay lip service to good faith settlement efforts.

T.W. Arnold, III