Participating In Family Law Reform Through The Elkins Report Referendum

Have you ever heard of a local rule of court that required you as an attorney to present your case entirely by declarations at time of trial including establishing the admissibility of all the exhibits which you wish to have entered into evidence? How difficult and more time consuming is that than presenting oral evidence?

How difficult for an attorney? How much more difficult for a husband representing himself in a dissolution case while wife is represented by counsel? This was the local rule in Contra Costa County.

Now comes Mr. Elkins who is self-represented. His pretrial declaration fails to establish the evidentiary foundation for all but 2 of his 36 exhibits. Because he didnt lay a proper foundation as he was required to do in his declarations, 34 of his exhibits are excluded. So guess who had the marital property divided the way that spouse wanted it? Mr. Elkins was substantially deprived of his right to be heard by the local rule in Contra Costa County. So Mr. Elkins appealed and his case went up to the California Supreme Court.

In 2007, the California Supreme Court in the case called Elkins v. Superior Court (2007) 41 Cal 45h 1337, found that the local rule conflicted with existing statutory law and deprived litigants of meaningful access to the courts, and that marital dissolution trials should proceed under the same general rules of procedure that govern other civil trials.

The California Supreme Court also recognized that family courts, among the busiest in the state are underresourced , have few bench officers per the number of litigants per capita than in other areas of the legal system and that the ever growing number of self-represented litigants is presenting what was termed unique challenges to the courts ability to provide meaningful access to justice.

The Supreme court emphasized that if trial courts do not have adequate resources for family law cases, they should seek additional resources instead of putting efficiency ahead of fairness. The court noted that in trying to streamline the litigation process in family law, litigants should not be subjected to second-class status or deprived of access to justice. In other words, the Supremes held that family law litigants should have the same due process protections of adversary trials concluding using the established rules of evidence as litigants in other types of civil cases.

Main advantage of divorce peacemakers are, they allows couples to share mutual information to be shared among the professionals and clients alike and also they allows for questions to be asked and answers to be given from both side. It keeps litigation and the financial and emotional wastefulness associated with litigation at abeyance.

Mediated divorce is an great court room alternative to traditional litigation and also it is faster and less expensive than retaining litigation attorneys helps you in this process of beginning your life again after divorce.