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,
