Civil Rules Changes Affect Family Law Rules

by Annette Burns on December 22, 2016

The Arizona Civil Rules of Procedure change on January 1, 2017, and some of the changes affect family law work.    Even if some Civil changes don’t affect family cases right away, those changes are likely to influence the restyling of family law rules that will happen in 2019.

Here’s my personal summary of the highlights of the changes, with commentary on how these might affect family law practice.  This is NOT intended to be a full summary of all Civil Rules changes, and you are strongly encouraged to read the full articles (there are five articles) outlining the changes in the December 2016 Arizona Attorney magazine.

  1. In general, all references to “shall” in the rules are changed to “must”, “should”, “may”, or “will”.
  2. Comments to the Rules are either deleted or incorporated into the Rule itself, so it appears that using Comments is now disfavored.
  3. I found no updates mandating or clarifying service of documents by email, so it appears that the family rules regarding service of documents remains in effect.    Currently, service of documents after a party has made an appearance in a case must be by mail or personal delivery unless a person has explicitly consented to service by email.
  4. Counting days for responding to a motion has changed.   It’s very likely this will be changing in the family rules in the future. The new provision is “counting backwards”, so when you count the days for your response and the last day falls on a Saturday, Sunday or legal holiday, your response is now due BEFORE the weekend or holiday, not after.
  5. There are new requirements to certify that you’ve discussed something in good faith with opposing counsel BEFORE filing motions pursuant to Civil Rule 11, 26, 37 or 56, and this effort requires actual discussion, not just writing to each other.  The certification includes statements that you tried in vain to confer with the other side who would not cooperate. I have no idea how this can be crafted to apply to cases where one side is represented and the other is pro se, which is obviously the huge portion of family cases – but this certification is also likely to apply to family cases in the future.
  6. Motion length and font to use in pleadings. Yes, they’ve changed the font requirement from 12-point to 13-point type, and to accommodate the slightly larger type, Motions and Responses may now be 17 pages long (up from 15 pages), and Replies may be 11 pages long.   This is one of those Rules that applies to family cases now, as we have no separate family rule covering document length.
  7. Scope of discovery has changed. The Civil Rules now refer to discovery being “proportional to the needs of the case, considering the importance of the issues . . . “ and even includes reference to “the parties’ relative access to relevant information.”  Could this mean that parties will no longer be required to produce and exchange joint bank statements and other documents that they both have access to?
  8. Scope of discovery. The description of allowable discovery has changed from things “reasonably calculated to lead to the discovery of admissible evidence.”  That language is deleted and replaced with “Information within this scope of discovery need not be admissible in evidence to be discoverable.”     This is thought (in the Arizona Attorney article) to mean some “shrinking” of the scope of discovery.
  9. Time to respond to discovery is shortened. The 40 days to respond to discovery is reduced to 30 days.  I can’t imagine why the family rules won’t adopt this to be consistent.
  10. Objections to discovery will need to be stated with more specificity, and any portion of the request that is not objected to needs to be responded to while the objection is pending.  And if you object, you have to state if any documents are withheld pursuant to the objection.
  11. Formats for disputes regarding the production of ESI (electronically stored information) are set up, and automatic disclosure of ESI is required 40 days after the standard disclosure statement is due.
  12. Change of judge timing is different.  This applies to family cases immediately, as the Family Rules don’t have a separate Change of Judge rule.   Notice of change of judge is now due “within 90 days after the party giving notice first appears in the case.”  This is significantly different than “no later than 60 days before the date set for trial”, so pay attention.
  13. The Civil Rules made some significant changes to their default rules including the content of the default application. The Family Rules are already very different than the Civil Rules when it comes to defaults, and the family default rules need some overhauling on their own.

I have NOT attempted to list each and every change to the Civil Rules, so you need to review the changes, and the article referenced above, to see all the changes for yourself.

The committee which will restyle the Family Rules will start meeting in February 2017 and will continue work 2017-2018, so changes to our Rules will likely be effective January 1, 2019.  Still, as several of the Civil Rules affect our practice now, and undoubtedly will affect us more in the future, it makes sense to review all the Civil Rules changes now and get ready.

REMEMBER: These changes have not taken effect yet for family cases, and won’t take effect in 2017 or (probably) 2018, except as noted above (length of motions and change of judge).    

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