California Family Law Attorney
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September 08, 2010
  What do I do if my spouse or domestic partner does not complete their DECLARATION OF DISCLOSURE?
Posted By Thurman Arnold

Q. What do I do if the other party to a divorce or dissolution of domestic partnership proceeding refuses to file their Preliminary Declaration of Disclosure?

A. Declarations of Disclosure must be exchanged in all California proceedings for dissolution of marriage or domestic partnership, for legal separations, and for annulments. They do not need to be served in any other form of family law proceeding.

There are two forms of Declarations of Disclosure: Preliminary Declarations of Disclosure (PDD's) and Final Declarations of Disclosure (FDD's). PDD's are governed by Family Code section 2103 and FC section 2104. FDD's are governed by Family Code section 2105. While parties to a dissolution or legal separation action can waive the exchange of the FDD in writing (although it is not a good idea to do so for reasons discussed in my blogs about fiduciary duties), they cannot waive exchanging the Preliminary Declarations with one exception: Where a dissolution or legal separation judgment is obtained by default, the defaulting party need not provide the PDD to the other party. Family Code section 2110.

Note that I used the words "exchange" and "serve." This is because the forms themselves are not required to be filed with the Court itself - instead, the proof of service upon the other party to the proceeding is what is to be filed. Judicial Council Form FL-141 is what you file with the clerk's office. In practice many people do file the actual schedules with the clerk, which can be a good idea because whether these forms were really exchanged and their contents can have a big impact on future set aside motions.

Here is the California Judicial Council Form FL-140 cover sheet that accompanies the PDD or the FDD. As you can see, it is the same form but different boxes are checked for each. A form FL-150 Income and Expense Declaration must accompany both, in addition to the FL-142 Schedule of Assets and Debts and the FL-160 Property Declaration.

The FDD is supposed to have much more detailed information, including supporting attachments, then is expected in the PDD.

Where the proceedings do not conclude by way of a default Judgment, the problem you have where the other party fails or refuses to exchange at least their PDD and thereupon to file the FL-141 proof of service is that the clerk cannot (a) set the matter for trial or (b) cannot accept for submittal to a judge and later filing a Stipulated Judgment or Marital Termination Agreement. This can make it impossible to conclude a case even by way of settlement where both parties are in perfect agreement, or to obtain a trial date where they are not. One party can hold up the entire process, and it is true that this often happens intentionally.

Parties must complete and exchange their preliminary declarations within 60 days of filing their Petition or Response. Family Code section 2104.

The only remedy you have is file a notice of motion (or OSC application) pursuant to Family Code section 2107 asking that the court order the other party to serve their PDD and file the proof of service within a given number of days, not usually exceeding thirty. That motion should request an order that the other party's Petition or Response be stricken if they then fail to do so in a timely manner, so that your matter may effectively proceed by default hearing.

Expect the Court to give the other side one or two opportunities to get themselves into compliance with their fiduciary obligations to provide this exchange.

Want to learn more about California rules relating to Declarations of Disclosure?

Thurman W. Arnold III

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April 13, 2010
  How Do I Defend a Request by My (Former) Spouse to SET ASIDE our Support Orders?
Posted By Thurman Arnold

Q. My former spouse claims that I lied on my Income and Expense Declaration and has filed a motion to set aside that order, seeking more money. How do I oppose this?

A. This type of support modification request typically occurs in two situations: Where the other party alleges that you aren't paying enough because you understated your income, or where you wound up paying too much because the other party lied in their Income and Expense Declaration [FL-150], or some other sworn pleading filed with the Court.

If you are defending a support set aside motion, here are some suggestions beyond simply denying that you lied about anything, particularly if it does appear that your numbers were to any extent questionable or inaccurate.

First, remember that the moving party has the burden of introducing evidence that establishes more than that the support order was a) inequitable when made, or b) that subsequent circumstances caused the the supported ordered to be inadequate or excessive. Family Code section 3692. Argue that, at best, that is all they have shown and by itself that is not enough.

Second, the time for filing a set aside request is strictly limited by statute. An action based upon fraud or perjury must be brought within six months after the date on which the complaining party discovered or should reasonably have discovered the fraud or perjury. Family Code section 3691. Be sure to assert all time based defenses, and even if the request was technically within the permitted time frame, nonetheless urge that the other party unreasonably delayed filing their motion, and that this caused you specific detriment (i.e., that you took some action in reliance upon the amount of the support award, like signing a lease agreement for an apartment you otherwise could not have afforded).

Look to see whether the party seeking the set-aside ever said something in their court filings that might bite them now, and draw the court's attention to them.

On April 8, 2010, the case of In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900 was decided. In Zimmerman a mother filed a motion to have all child support recalculated going back five years, on the ground that the father had committed fraud and perjury by concealing income in his earlier FL-150's, which the court had then relied upon.

However, because she had - within those five years - filed with the Court a declaration making reference to these very same claims, the trial court properly found that more than six months had passed since she had discovered, or reasonably should have discovered, that she fraud and perjury claim existed and so her claim was time-barred.

This outcome is important to keep in mind, since family law litigants are frequently claiming in their papers that the other side is lying or concealing information, but often cannot prove it yet. Zimmerman cautions us that it is an unwise practice to mention these claims prematurely (beyond at the initial hearing), because if such statements appear in the record the defending party can seize upon them to point out that "you see, she knew she had this claim two years ago."

It is always unwise to make statements to the Court about dishonest conduct on the part of the other side where there is no solid proof, yet, in any event, because unsubstantiated personal attacks don't sit well with family law judges.

For more articles discussing how to set-aside support orders in custody and divorce cases, join us here!

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Thurman W. Arnold III

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April 13, 2010
  What Are My Rights When I Believe My Spouse Committed Fraud in Their Income & Expense Statement?
Posted By Thurman Arnold

Q. What remedies do you have if you believe your spouse concealed income or lied about assets in their Income and Expense Declaration [Form FL-150]?

What If He Lied to You and the Court In His Income Statement?

The FL-150 Income and Expense Declaration must be filed by each party in every California family law case involving requests for money (whether support or attorney fees), and it must accompany the FL-142 Schedule of Assets and Debts that is part of the Preliminary Declaration of Disclosure that must be exchanged in all action for dissolution of marriage or domestic partnership, legal separation, and annulment. In addition, Rule of Court 5.427 requires these Income and Expense Declarations to be current, which means they need to be updated so that they are, generally speaking, not more than 90 days stale.

Family Code section 2100 states the public policy of the State in requiring accurate income and expense disclosures. It is a good thing to remind your judge about, since it underscores that providing false information is not to be dismissed lightly. Also be sure to read FC section 2102(a)(1), which discusses fiduciary duties and income disclosures specifically.

Family Code section 3691 sets for the grounds and time limits for filing a Motion or OSC to set aside and correct an order for child support or spousal support which was obtained by your present or former spouse, or the other parent. You need to be very careful with these time limits, because they are shorter than other set aside remedies contained in the Family Code (for instance, Family Code section 2122 dealing with property settlements and judgments). It is important get the applicable code sections right, because different time limits apply for seeking relief from the Court.

What Are Grounds for Setting Aside a Support Order?

Family Code section 3691 lists the grounds for a support set aside as a) actual fraud; b) perjury; and c) lack of notice.

a) Fraud - this occurs when 1) the defrauded party is kept in ignorance or 2) in some manner other than their own lack of care or attention was fraudulently prevented from fully participating in the proceeding. This set aside ground is different from perjury. It applies to a situation, for instance, where you were told that your spouse was not seeking certain orders and so you failed to attend to the hearing only to learn later that in your absence much broader relief was requested than represented. It also applies any time information is provided by the other side that was materially false and when you relied on that false information not knowing that it was false (for instance, a party fails to disclose another job, much higher earnings, or property).

b) Perjury - where the other side has simply lied outright under oath in their Income and Expense Declaration or in the supporting verified application. Be sure to allege fraud as well since a perjurious statement is often a fraud.

c) Lack of Notice - this generally applies to situations where the other side claims you received notice of the proceedings but in fact you were not served. This can be difficult to prove where a proof of service was filed with the Court which itself is perjurious (i.e., your husband's best friend he claims he hand delivered to the documents to you on a day you were in New York).

This section applies equally to orders which were way too high based upon any of the above grounds as those that were way too low.

Family Code section 3691 will not help you in situations addressed in Family Code section 3692, where your support order was merely unfair or subsequent circumstances caused the order to be excessive or inadequate. Section 3692 is your first argument in defending a support order set aside motion.

In any of the above cases, you must file your motion within six months of the time you discovered or reasonably should have discovered the fraud, perjury, or reasonably adequate notice of the order.

For more information about setting aside support orders because of lies, visit us here.

If you want to learn about your set aside rights generally, click here!

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Thurman W. Arnold III

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3 entries found. Viewing page 1 of 1.