Family Code section 2104 - "Preliminary Declarations of Disclosure"


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!

Read More About Preliminary Declarations of Disclosure!



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.

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