THURMAN'S INSIDER'S MARITAL DISCLOSURE TIPS:
What Is the Preliminary Declaration of Disclosure in California?
California Family Code section 2104 was revised effective January 1, 2013,
to add subsection (f), to now require each party to serve their Preliminary
Declaration of Disclosure (PDDs) within sixty days of filing a Petition
for Dissolution, Legal Separation or Annulment, or a Response thereto.
It applies to marital dissolutions, legal separations, and annulments.
This is a terrific amendment since until now each party was only required
to exchange their PDDs within a "reasonable time" (for any lazy
lawyer or party or those with an opaque agenda, this meant whenever they
'felt like it') - which was meaningless in terms of enforcing
the obligation, giving judges too much discretion, that varied from courtroom
to courtroom, to define what was appropriate and what was not. Family
law litigants and their attorneys desperately need predictability and
transparency, and realistically they need rules since if left to their
own whims or power-plays the monied spouse can play hide-and-go-seek until
the less privileged party is totally starved out, and broke. These disclosure
statements exist to assure that each party complies with their statutory
fiduciary duties to reveal what either accumulated during the marriage
- and after separation until the case concludes - and to tell the other
side what that property is worth.
The statute is still flawed in the sense that as a "preliminary"
declaration neither spouse is required to supply the back up which typically
consists of bank and credit card statements, title documents, or other
proof of the existence or value of community or separate property. Sophisticated
family law attorneys refer to this as "MFIs" - the material
facts and information that supports or evidences the assertions made in
the disclosure document.
There is a second exchange that is required in dissolution and legal separation
proceedings in California. It is the "Final Declaration of Disclosure".
This is a significantly more important exchange but it can be waived (the
PDD cannot be waived, except in default situations where the other party
has failed to file a Response to the disso Petition). I've whined
and written about these policy shortcomings in a number of my Blogs, so
if this topic is of interest to you I promise you can read much more about
it by using our on board search engine!
CALIFORNIA FAMILY CODE
DISCLOSURE OF ASSETS AND LIABILITIES
Preliminary Declarations of Disclosure
Family Code Section 2104
| (a) |
Except by court order for good cause, as provided in Section 2107, or when
service of the preliminary declaration of disclosure is not required pursuant
to Section 2110, in the time period set forth in subdivision (f), each
party shall serve on the other party a preliminary declaration of disclosure,
executed under penalty of perjury on a form prescribed by the Judicial
Council. The commission of perjury on the preliminary declaration of disclosure
may be grounds for setting aside the judgment, or any part or parts thereof,
pursuant to Chapter 10 (commencing with Section 2120), in addition to
any and all other remedies, civil or criminal, that otherwise are available
under law for the commission of perjury. The preliminary declaration of
disclosure shall include all tax returns filed by the declarant within
the two years prior to the date that the party served the declaration. |
| (b) |
The preliminary declaration of disclosure shall not be filed with the court,
except on court order. However, the parties shall file proof of service
of the preliminary declaration of disclosure with the court. |
| (c) |
The preliminary declaration of disclosure shall set forth with sufficient
particularity, that a person of reasonable and ordinary intelligence can
ascertain, all of the following:
| (1) |
The identity of all assets in which the declarant has or may have an interest
and all liabilities for which the declarant is or may be liable, regardless
of the characterization of the asset or liability as community, quasi-community,
or separate. |
| (2) |
The declarant's percentage of ownership in each asset and percentage
of obligation for each liability when property is not solely owned by
one or both of the parties. The preliminary declaration may also set forth
the declarant's characterization of each asset or liability. |
|
| (d) |
A declarant may amend his or her preliminary declaration of disclosure
without leave of the court. Proof of service of any amendment shall be
filed with the court. |
| (e) |
Along with the preliminary declaration of disclosure, each party shall
provide the other party with a completed income and expense declaration
unless an income and expense declaration has already been provided and
is current and valid. |
| (f) |
The petitioner shall serve the other party with the preliminary declaration
of disclosure either concurrently with the petition for dissolution or
legal separation, or within 60 days of filing the petition. When a petitioner
serves the summons and petition by publication or posting pursuant to
court order and the respondent files a response prior to a default judgment
being entered, the petitioner shall serve the other party with the preliminary
declaration of disclosure within 30 days of the response being filed.
The respondent shall serve the other party with the preliminary declaration
of disclosure either concurrently with the response to the petition, or
within 60 days of filing the response. The time periods specified in this
subdivision may be extended by written agreement of the parties or by
court order. |
