Considerations for Joinder and Consolidation in Family Law Cases
As discussed in prior blogs, while many distinct areas of the law exist, situations often arise in which two or more areas of the law intersect. For example, a personal injury award received by an injured spouse or a Marvin claim made by a spouse re events pre-marriage both serve as two examples where civil actions and family law cases intersect. See our prior blogs for more details.
This blog furthers that discussion, addressing when a party may want to join a civil case with their family case or consolidate the two cases. Joinder refers to bringing a new party into an existing lawsuit. Consolidation, on the other hand, takes two (or more) separate and distinct lawsuits and consolidates them in front of one judge.
Sometimes, a third party has an interest in a dissolution case. California Rules of Court, Rule 5.24, governs joinder procedure in family law actions. Either party “may apply to the court for an order joining a person as a party to the case who has or claims custody or physical control of any of the minor children subject to the action, or visitation rights with respect to such children, or who has in his or her possession or control or claims to own any property subject to the jurisdiction of the court in the proceeding.”[i]
A court must order that a person be joined as a party to the proceeding “if the court discovers that person has physical custody or claims custody or visitation rights with respect to any minor child of the marriage, domestic partnership, or to any minor child of the relationship.”[ii] (“Before ordering the joinder of a grandparent of a minor child in the proceeding under Family Code section 3104, the court must take the actions described in section 3104(a).”)[iii]
A court may order that a person be joined as a party to the proceeding “if the court finds that it would be appropriate to determine the particular issue in the proceeding and that the person to be joined as a party is either indispensable for the court to make an order about that issue or is necessary to the enforcement of any judgment rendered on that issue.” In so deciding, a court must consider its effect upon the proceeding, including:
“(A) Whether resolving that issue will unduly delay the disposition of the proceeding;
(B) Whether other parties would need to be joined to make an effective judgment between the parties;
(C) Whether resolving that issue will confuse other issues in the proceeding; and
(D) Whether the joinder of a party to determine the particular issue will complicate, delay, or otherwise interfere with the effective disposition of the proceeding.”[iv]
A party seeking to join a third party will have to file a motion with the court. Then, if the motion is granted, the third party must be personally served with a Summons.
Code of Civil Procedure section 1048(a) governs consolidation of cases. The section provides: “When actions involving a common question of law or fact are pending, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.”
In practice, this saves time and money when two or more cases deal with overlapping issues. Consolidating the cases will ensure that court hearings are held on the same date and that the judge has a full picture of what is taking place.
There are many instances in which common questions of law or fact may present in both a dissolution action and a separate civil case. For one, as we discussed in a prior blog, a Marvin claim in civil court may relate to a dissolution case in family court. By way of further example, in one case[v], a court consolidated a marital dissolution action with a civil action in which the husband sued to set aside the deed to a residence that he had deeded to his wife based on her fraud. The Court held that the two actions involved a “common question of law or fact” and were properly consolidated.
If you feel like a third party should be joined to your dissolution case, or that a separate civil case would be better served by being consolidated with your dissolution case, it likely would be best to seek the advice of an attorney in determining next steps for the most efficient litigation of your action(s).
[i] California Rules of Court, Rule 5.24(c)(1).
[ii] California Rules of Court, Rule 5.24 (e)(1)(A).
[iii] California Rules of Court, Rule 5.24 (e)(1)(B).
[iv] California Rules of Court, Rule 5.24 (e)(2).
[v] In re Marriage of McNeill (1984) 160 Cal.App.3d 548, 557, disapproved of on other grounds by In re Marriage of Fabian (1986) 41 Cal.3d 440.