What You Need to Know About Family Code Section 218
Section 218 of the California Family Code allows for the reopening of discovery post-judgment. Here’s everything you need to know about Family Code Section 218: Discovery Provisions.
If someone requests an order or another motion is filed and served after a post-judgment in a family law proceeding, discovery automatically reopens. However, the discovery only opens with respect to the issues raised in the post-judgment proceedings before the court.
Post-judgment refers to any legal action that seeks to enforce or to modify a previous final judgment of the court. The cutoff date for discovery in post-judgment family law proceedings is the 30th day before the date set for hearing on the motion, any continuance of that hearing, or evidentiary trial, whichever is later. It is important to note that a party is entitled to have discovery motions heard at least 15 days before that date.
What is Discovery?
Discovery is the process used in pre-trial to gather information in preparation for a trial. During discovery, both sides collect and exchange information about the case. One may collect facts, get witness statements informally and in a deposition, find out what the other side will say or argue, examine the strength of the other party’s argument, examine one’s own argument, and get all the important information required to best present a case in court.
Discovery can be both formal and informal. In either case, information gathered during discovery is not filed with the court; it is just shared with the other side of the lawsuit.
Informal discovery
Informal discoveries include all information-gathering that one can do on their own by working with cooperative people or organizations before and after a lawsuit is filed. This process often includes conducting witness interviews, gathering documents from public agencies, police officers, doctors, etc., taking photographs of relevant evidence, and more.
Formal discovery
Formal discoveries are the legal process that can be used after a case has been filed. There are a few ways that one can use to gather the information the other side may have. These include, but are not limited to:
- Interrogatories, which refer to written questions for the other party which must be answered in writing and under oath. The answers may be used in trial.
- Depositions, which are oral, in-person questions that the person being deposed must answer under oath.
- Requests for production of documents, which is either for a specific document or a class of documents likely to be relevant to the case.
- Requests for Admissions, which is when a party asks the other side to admit whether a statement is true. Usually, this is done to focus on what is truly at dispute. These answers may also be used in trials.
- Subpoenas, which are written court orders requiring the other side or a third party to testify or produce certain physical evidence such as books, records, or other documents for inspection.
Breakdown of Family Law Code Section 218: Discovery Provisions
Section 218 holds that if a post-judgment request for order or other motion in a family law proceeding is filed after a post-judgment of dissolution, the law permits a reopening of discovery related to the issue or issues raised in the request for order or other motion. The reopening of discovery may also occur if after dissolution which resolves all issues, or a judgment on reserved issues, or if the status of the marriage was terminated before a resolution of all issues and the court reserved jurisdiction over all remaining issues. Section 218 also requires that a motion or request for order be filed and served before commencement of post-judgment discovery.
Post-judgment discovery is slightly different under family law proceedings than for discovery during a proceeding. There is no longer a fiduciary duty between the parties, so the laws regarding fiduciary duties no longer apply.
Section 218 was enacted to correct some misunderstandings regarding post-judgment proceedings. In this context, “post-judgment” proceedings do not mean proceedings after a judgment of dissolution status only. It refers to proceedings after the entry of an order or a final judgment on an issue in the trial court. Discovery is only reopened as to the issues in the post-judgment proceedings. For example, if there is a modification for child custody and visitation, there is no discovery permitted as to the financial situation of either party—it will just be on the specific issue raised.
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