Can I CONTINUE My DIVORCE TRIAL?

Q. My divorce trial is scheduled for next month. I want to change attorneys - will the case be continued to give a new attorney enough time to prepare my case correctly?

Trial continuances are disfavored under the law. Any application to continue a family law trial must be made pursuant to Cal.Rules of Court, Rule 3.1332. It allows for "ex parte" requests to continue trials as well as such applications on noticed motions upon a showing of good cause and in the interests of justice, and lists some examples of what a trial court might properly consider to be "good cause." Subsection (c)(4) includes substitution of trial counsel as a ground "but only where there is an affirmative showing that the substitution is required in the interests of justice." Courts are highly unlikely to permit more than one continuance without a really good reason, so I hope this is your first request.

Usually when you file this kind of ex parte you should also ask the court, "in the alternative", for "an order shortening time" (OST) for the hearing on the motion" since judges are feeling pressured from the "Elkins" changes in the law and are stretched in their abilities to read ex parte paperwork (usually received by the court the day before or the morning of) at the last moment. Indeed, ex parte applications on all matters except the direst emergencies are being increasingly denied - and they irritate judges. In fact, some judges may sanction a party or their attorney for a clearly improper one.

Whether you seek an OST also depends upon where you are in the procedural timeline - for instance, if the discovery cut-off (including the exchange of any designation of experts per the Code) has not yet occurred but would toll between the date of an ex parte hearing and the date of a hearing on shortened notice per your applicable local rules or by statute, then be sure in your ex parte to include a request that the discovery clock be switched off until the court issues its ruling on the continuance. Otherwise you or your new attorney will need to file a motion to reopen discovery once the case is continued - assuming that important things remained undone - usually the case when parties are switching attorneys on the eve of trial.

In fact, I have seen cases where parties want to change attorneys because the offer that is on the table is at a substantial discount for how much or what agreements the case should reasonably be settled for, but because the weaker party's attorneys messed up the case that party is now at such a disadvantage that they must seriously consider taking the offer or doing worse at trial. Strong, aggressive counsel for a powerful party (usually the "in-spouse") will vigorously try to push the case to its conclusion before you, the "out-spouse," can catch your balance. This is a recipe for disaster. By the way, having good competent divorce counsel from the beginning greatly enhances the likelihood that your case will be fairly settled and that it will not go to trial - that is the goal for any sensible person.

Here are my suggestions:

• See whether the side has done everything the law requires of them in formulating your grounds for "good cause" under Rule 3.1332. If they have and your attorney failed to also comply, this is not good. If neither side did what is required to avoid irregularities, then that is better. If your side did comply but the side did not, that is best and you should point this out in your papers and in oral argument.

• Did both sides exchange the Final Declaration of Disclosure (there is more than one form) and FL-150's within 45 days of the first assigned trial date? The court does not have authority to have a trial when the parties have failed to comply with Family Code section 2105. Section 2106 clearly states this and Family Code section 2107(d) similarly states that it is not harmless error for trial courts to ignore FC §2105.

• Did the other side comply with all applicable Local Rules regarding trial? For instance, in Riverside County we have local Rule 5.0053 which mandates that a Trial Readiness Conference be set before trial, and at least in Indio that you (or your attorney) sign a form that you understood and will comply with what those rules require. Here is a link to Title 5 of the Riverside County Local Rules for Family Law cases. There may be similar rules in your jurisdiction. Rule 5.0065 discusses ex parte procedures in Riverside County, which generally includes the family law divisions in downtown Riverside, Hemet, Indio and Blythe.

• Draft a declaration that establishes good cause for your request - one that speaks to both justice and procedural issues. Anticipate what prejudice the other side will claim in opposition to your continuance request. Offer to ameliorate it if you can, in advance of the hearing on the ex parte.

• Rule 3.1332(d)(10) permits the court to impose "conditions" if it grants a continuance. These need to be reasonable of course. A frequent condition "no more continuances." Unreasonable requests may be that you are asked to waive a fundamental right that is a key issue in the case itself, i.e., a waiver of spousal support or an agreement that the court will have retroactive jurisdiction at the trial when it does occur to reach back and modify support to the first trial date. Offering to contribute to the other side's attorney fees incurred surrounding the rescheduling may be appropriate under certain facts.

• Before you file your ex parte, be sure to attempt to "meet and confer" with the other side in an effort to obtain a stipulation to continue instead, and in order to discuss how you might minimize their inconvenience and prejudice and to discuss possible reasonable conditions in advance of the hearing that would address those issues. Attach any confirming letters as an exhibit.

• Make your motion as short as possible and author it to read fast - not more than 10 pages including declarations, points and authorities, and exhibits. Judges have no time to read long winded stories.

• Be sure to notice all the parties for the ex parte. For instance, if there has been a Borson motion by either side that attorney (the former, Borson attorney) must also get notice of the hearing and the paperwork at the time you set the hearing.

• Hire your new attorney first and have them make the motion (which is costly in terms of the amount of the retainer they will reasonably require, since if the motion is denied that attorney knows he may be going into a trial that will take immediate emergency hours to come up to speed on).

• If you haven't retained counsel yet and just want to continue a trial "to get counsel," you have a problem. While this excuse might work at the first hearing on an OSC or regular motion, it is unlikely to convince a judge who is managing his trial calender.

Good luck with your new attorney!