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What are the Declarations of Disclosure in a Divorce or Legal Separation Proceeding?

Posted by Jaime Kissinger | Nov 10, 2018 | 0 Comments

If you are going through a divorce or legal separation, you and the other party are required to serve on each other a preliminary and final declaration of disclosure, unless service of your final declaration is waived.

The primary purpose of the declarations of disclosure is to provide clear evidence that you and the other party have all of the material facts and information regarding your assets and liabilities. This helps to preserve and protect your community assets and liabilities as of the date of your separation, ensure that fair and sufficient child and spousal support awards are made in your case, achieve a division of your community assets and liabilities as provided by law, and reduce conflict between you and the other party by fostering disclosure and cooperative discovery. Fam. Code § 2100(a)-(b).

Your duties related to disclosure

You and the other party owe each other a fiduciary duty regarding any activity that may affect your assets and debts from the date of your separation until distribution of your community property. Fam. Code § 2102. This means you both owe each other a duty to act with the highest degree of honesty towards each other and in the best interest of each other. Your specific fiduciary duties in your divorce or legal separation proceeding include all of the following:

  1. You and your spouse must provide each other with an accurate and complete disclosure of all your assets and liabilities in which you each have or may have an interest or obligation and all your current earnings, accumulations, and expenses, including an immediate, full, and accurate update or augmentation to the extent there have been any material changes;
  2. You and your spouse must provide each other with an accurate and complete written disclosure of any investment opportunity, business opportunity, or other income-producing opportunity that presents itself after your date of separation but that results from any investment, significant business activity outside the ordinary course your business, or other income-producing opportunity of either of you from your date of marriage to your date of separation, inclusive. This written disclosure must be made early enough for you each to make an informed decision regarding participation in the opportunity, and for the court to resolve any dispute regarding the right of each of you to do so. In the event of nondisclosure of an investment opportunity, the court reserves jurisdiction over the division of any gain resulting from that opportunity; and
  3. The operation or management of a business you have or an interest in a business in which the community may have an interest.

Your preliminary declaration of disclosure

Pursuant to Family Code § 2104(c)(1)-(2), your preliminary declaration of disclosure must state with sufficient particularity, that a person of “reasonable and ordinary intelligence” can ascertain the following:

  1. The identity of all assets in which you have or may have an interest and all liabilities for which you are or may be liable, regardless of your characterization of the asset or liability; and
  2. Your percentage of ownership in each asset and your percentage of obligation of each liability when property is not solely owned by you or the other party. Your preliminary declaration may also state your characterization of each asset or liability.

You provide this information by completing a Schedule of Assets and Debts (FL-142).

In addition, you must also provide the other party with a completed Income and Expense Declaration (FL-150) and copies of your tax returns filed within the two years prior to the date you serve your preliminary declaration of disclosure. Fam. Code § 2104.

Your preliminary declaration of disclosure must be executed under penalty of perjury using the Declaration of Disclosure (FL-140) form.

Is there a deadline to complete my preliminary declaration of disclosure?

If you are the petitioner, your preliminary declaration of disclosure must be served on the other party either concurrently with your petition for dissolution or legal separation or within 60 days of filing your petition, whereas if you are the respondent, you must serve your preliminary declaration of disclosure concurrently with your response or within 60 days of filing your response. Fam. Code § 2104(f).

Is there a situation where I don't need to complete my preliminary declaration of disclosure?

No. The preliminary disclosure is required in all cases including default and summary dissolution cases.

Your final declaration of disclosure

Pursuant to Family Code § 2105(b)(1)-(4), your final declaration of disclosure must include all of the following information:

  1. All material facts and information regarding the characterization of all of your assets and liabilities;
  2. All material facts and information regarding the valuation of all of your assets that are contended to be community property or in which you contend the community has an interest;
  3. All material facts and information regarding the amounts of all of your obligations that are contended to be community obligations or for which you contend the community has liability; and
  4. All material facts and information regarding your earnings, accumulations, and expenses that you have set forth in your income and expense declaration.

You provide this information by completing a Schedule of Assets and Debts (FL-142) and attaching supporting documentation for your contentions in the Schedule of Assets and Debts, and by completing a supporting declaration containing the required information.

In addition, you must also provide the other party with a current completed Income and Expense Declaration (FL-150). Fam. Code §2105(a).

Your final declaration of disclosure must also be executed under penalty of perjury using the Declaration of Disclosure (FL-140) form.

Is there a deadline to complete my final declaration of disclosure?

Your final declaration of disclosure and Income and Expense Declaration must be served on the other party before or at the time you enter into an agreement resolving property or support issues, or , if your case goes to trial, no later than 45 days before your first assigned trial date. Fam. Code §2105.

Are there any exceptions to completing the final declaration of disclosure?

There are three exceptions to the final disclosure requirements. First, if you take the other party's default, or he or she takes yours, each of your final declarations of disclosure may be waived. This means neither you nor the other party will have to serve a final declaration of disclosure. Fam. Code §2110. This waiver of the final declaration of disclosure only applies to “true” default cases. A “true” default is a case in which the respondent neither appears nor participates.

Second, you and the other party won't have to complete the final declaration of disclosure if you both mutually waive them by executing a waiver under penalty of perjury. Fam. Code § 2105(d). The waiver does not actually waive both of your final disclosures; rather it is a statement showing you both have complied with the disclosure requirements.

Per Family Code § 2105(d), the waiver must include all of the following representations:

  1. You and the other party have complied with the requirements under Family Code § 2104, and your preliminary declarations of disclosure have been completed and exchanged;
  2. You and the other party have completed and exchanged a current Income and Expense Declaration that includes all material facts and information regarding each of your earnings, accumulations, and expenses;
  3. You and the other party have fully complied with the requirements under Family Code § 2102 and have fully augmented your preliminary declarations of disclosure, including disclosure of all material facts and information regarding the characterization of all of your assets and liabilities, the valuation of all assets and liabilities that you each contend to be community property or in which you contend the community has an interest, and the amounts of all obligations that you contend to be community obligations or for which the community has liability;
  4. You and the other party make the waiver knowingly, intelligently, an voluntarily; and
  5. You and the other party understand that the waiver does not limit your legal disclosure obligations, but rather are making a statement under penalty of perjury that your obligations have been fulfilled and that you understand that noncompliance with your obligations will result in the court setting aside your judgment.

Lastly, you and the other party won't need to complete your final declaration of disclosure if you and the other party have sought a summary dissolution. Fam. Code § 2109.

What are the consequences of not doing or waiving the final declaration of disclosure?

If you don't waive the final declaration of disclosure in a default action, or if you and the other party don't agree to mutually waive it, a judgment cannot be entered in your case with respect to your property rights. Fam. Code §2106.

Furthermore, if a judgment has been entered in your case and either you or the other party have failed to comply with the disclosure requirements, your judgment may bet set aside. Fam. Code § 2105(d)(5).

Remedies for failing to comply with the disclosure requirements

If the other party has failed to serve either a preliminary or final declaration of disclosure or failed to provide the information to you in such a declaration with sufficient particularity, and you have served the particular declaration on the other party, you may, within a reasonable time, request preparation of the particular declaration or further particularity. Fam. Code § 2107(a). If the other party fails to comply, you may then file a motion to compel a further response, a motion for an order preventing the other party from presenting evidence on issues that should have been covered in the declaration of disclosure, or a motion showing good cause for the court to grant its voluntary waiver of receipt of the other party's preliminary or final declaration of disclosure. Fam. Code § 2107(b).

In addition, if you comply with the disclosure requirements and the other party does not, the court must impose money sanctions against the other party in an amount sufficient to deter repetition of the conduct or comparable conduct, and award reasonable attorney fees and costs, unless the court finds the other party acted with substantial justification. Family Code §2107(c).

About the Author

Jaime Kissinger

Jaime L. Kissinger built her family law practice on the philosophy that families from all walks of life deserve access to quality legal services in some of the most vulnerable and difficult times of their lives. This belief drives her steadfast commitment to her clients in the Contra Costa commun...

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