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Is It Possible to Get My Ex's TAX RETURNS Without Any MOTION to MODIFY Pending Between Us?

Q. We were divorced three years ago and I haven't taken my ex-husband back to Court. I think he is earning a lot more now. Is there anything I can do to find out what his situation is short of actually filing a modification motion?


Absolutely. There is a little known trick for obtaining useful information, possibly with a minimum of trouble, once each year. This is the Request for a completed Income and Expense Declaration (Form FL-150) pursuant to Family Code section 3664.

When there is no motion or OSC pending for a modification, termination, or set aside of earlier support orders you are limited in terms of your discovery rights in California - assuming the proceedings were completed in the sense that nothing is pending or presently calendared (if there is no final judgment in a divorce, partnership dissolution, or paternity action then you are entitled to continue to utilize discovery and what I say here doesn't apply). You cannot, for instance, schedule a deposition or send out interrogatories or even subpoena records, at least not properly. I have seen lawyers send subpoenas when nothing was pending and if I had done nothing they probably would have gotten the information requested since the receiving party doesn't know the status of the case, but when I objected they backed off and canceled the subpoenas at once because it was abuse of process to do what they were attempting.

But in your case you only have the option provided for by FC section 3664. This entitles you to send out on an approved FL-396 Request for Production of An Income and Expense Declaration After Judgment a request no more than once each year (Family Code section 3663) for the other party to produce for you an updated Income and Expense Declaration.

Importantly, the responding party is required to attach to it their last year's federal and state personal income tax returns. (Family Code section 3665).

If they do not respond to you within 35 days, or if there information is incomplete as to wages, you may serve Judicial Council Form Request FL-397 upon their employer per Family Code section 3664(b) and (c). Unfortunately, compliance by the employer is voluntary and so this provision lacks teeth. Yet if you later do file a motion and can show a history of noncompliance by the employer and/or the other party you are more likely to recover attorney fees or sanctions as well as prove that the other party is being evasive or possibly dishonest and this may help you not only to carry your burden of proof and obtain a modification but it may impact how strongly the court acts towards your ex. In the case of family businesses where there is a lack of cooperation it helps the Court to see that you are being stymied.

Section 3664 is also a very useful tool for parties who are trying to modify or terminate support payments that they have been ordered to make. If you are a payor former spouse or domestic partner and want to terminate the other party's support rights, you would begin by sending them the Request. Again, if they fail to cooperate and comply it makes them look like they are hiding something.

Finally, Family Code section 3667 entitles you to recover certain sanctions where the Income and Expense declaration wasn't provided you, was incomplete, or lacked the required tax return attachments. While you cannot recover attorney fees if you don't actually have an attorney (and this section doesn't provide for them anyway), you can recover deposition and related costs, like for subpoenaed records (which can be significant charges), even where you are a self-represented party.

Good luck!



Thurman W. Arnold III,

Comments

If our divorce was final over 2 years ago, there is no order for child support (by stipulation), although minor children do exist, does CFC 3664(a) allow one spouse to compel the other to fill out Form 396? My reading of 3664(a) seems to imply that it only is in effect in the presence of an existing support order.
Lil, if there is no final Judgment (as with a still pending dissolution, legal separation, or paternity for instance) then either party can serve discovery including interrogatories upon the other - there does not need to be an OSC or Motion calendared because the entire matter remains pending. If however this is post-judgment and no application of any kind has been filed and no court dates are set, you might serve a document within the statutory time (30 days from the date of mailing to you) captioned with the case and titled "Objection to Form Interrogatories".

Follow the format of CCP section 2030.010 et seq., and state something to the effect of "Objection: This responding party is not aware of any post-judgment proceedings that are pending within the meaning of CCP section 2017.010, and therefore the interrogatories that have been propounded are not reasonably calculated to the lead to the discovery of admissible, and this responding party declines to answer same. This objecting party is, however, w
How does one respond to a request for Form Interrogatories when there is no pending motion or OSC. Is the other parties attorney just figuring since we don't have an attorney, we'll be dumb enough to answer?
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