Step 5
Preliminary Declaration Of Disclosure
 
 
 Index:
Overview
Prepare The Preliminary Disclosure Packages
Serve Your Spouse
Prepare Proofe Of Service By Mail
Prepare & File Declaration Regarding Service Of Declaration Of Disclosure
But What If Your Spouse Won't Cooperate?
 Forms For Step 5
1 Declaration of Disclosure
2
Schedule of Assets and Debts
3
Income and Expense Declaration
4
Proof Of Service By Mail
5
Declaration Regarding Service Of Declaration Of Disclosure
6 Generic Declaration
 7 Sample Attachmen To Declaration
 
 
1. Overview: It is the policy of the State of California to insure a proper division of community property and to further insure that child and spousal support awards will be fair and equitable. To this end, California Family Code Section § 2100 et seq. mandates the exchange of prescribed "preliminary" and "final" declarations of disclosure, along with current income and expense declarations, in all marriage dissolution, legal separation and nullity actions.
 
Two Disclosures must be made:
 a. "Preliminary" Disclosure: The parties must exchange prescribed "preliminary" declarations of disclosure "[a]fter or concurrently with" service of the petition for marriage dissolution, nullity or legal separation. [California Family Code § 2104(a)]. In "contested" cases the exchange of "preliminary" disclosure declarations by both parties is mandatory and may not be waived. In default cases, (wherein no Response is filed) the law recognizes that it may be impossible to obtain a disclosure from an uncooperative defaulting spouse and, in such a case, only the Petitioner need make the preliminary disclosure.
 b.
"Final" Disclosure: A second more comprehensive "final" declarations of disclosure must be made either (1) "before or at the time the parties enter into an agreement for the resolution of property or support issues", or (2) if the case goes to trial, "no later than 45 days before the first assigned trial date." [California Family Law Code § 2105(a)]. Under certain circumstances (described below) the "final disclosure" requirement may be waived by the parties.
 
The preliminary declarations of disclosure are intended to be only general inventories of assets and liabilities. All assets and liabilities need to be listed but, unlike the "final" disclosure, property characterization and valuation details are not required.
 
Family Law Code Section 2104(c) requires that each party in his or her preliminary disclosure "shall set forth with sufficient particularity, which a person of reasonable and ordinary intelligence can ascertain,":
 a. 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.
 b.
The declarant's percentage of ownership in each asset and percentage of obligation for each liability where property is not solely owned by one or both parties to the action.
 c.
Optionally, the declarant's characterization of each asset and liability as being community property, separate property, quasi-community property, or "mixed."
To protect the privacy of the parties and to encourage them to make full and accurate disclosures, the Code requires that each party serve his or her declarations on the other party but does not require them to be filed with the court. The only document filed with the court is a declaration acknowledging that the disclosures have been made.
 
The law requires an "exchange" of the declarations and therefore will want to see proof you're your spouse has made a disclosure to you. If your spouse won't cooperate, follow the procedure outlined below.
 
2. Prepare The Preliminary Disclosure Package(s): Unless your spouse has defaulted, you and your spouse will both need to prepare the following documents:
 a. Declaration of Disclosure (Judicial Counsel Form 1292, Form #13 on the forms list) This is merely a skeleton "cover sheet" to be used for both the "preliminary" and "final" declarations of disclosure. The documents attached to the Declaration provide the details:
 b.
Schedule of Assets and Debts (Judicial Counsel Form 1292.11, #14 on the forms list)
 c.
Income and Expense Declaration (Judicial Counsel Form 1285.50, Form #15 on the forms list)
 
3. Serve Your Spouse: You and your spouse will both need to mail copies of your disclosure packages to each other. Mail only a) the Declaration Of Disclosure, b) the Schedule Of Assets and Debts, and, c) the Income & Expense Declaration.
 
4. Prepare Proof By Mail: Complete the "Proof Of Service By Mail" (Judicial Counsel Form 1285.85, Form #11 on the forms list) indicating that all of the above documents have been served by mail on the opposing party. Keep the original in your file - it will not have to be filed with the court unless the service is challenged.
 
5. Prepare & File Declaration Regarding Service Of Declaration Of Disclosure: Complete the Declaration Regarding Service Of Declaration Of Disclosure (Judicial Counsel Form 1292.05, Form #16 on the forms list, file the original with the court, and keep a copy for your file.
 
6. But What If Your Spouse Won't Cooperate? Getting a defaulting spouse to cooperate in filing a disclosure can be difficult and, in many cases, impossible. If you face this problem, you need to make a reasonable effort to have your spouse comply with the law, document your efforts to do so, and describe those efforts the court.
Here is what to do:
 a. Follow the procedure described above and serve your spouse with your disclosure.
 b.
Send your spouse a set of blank disclosure forms and a letter describing his/her legal duty to serve you with a disclosure. Send these both by regular and certified mail, return receipt requested.
 c.
Keep a copy of the letter.
 d. Give your spouse a reasonable time - at least 30 days - to comply.
 e. If you receive no cooperation, use the Judicial Counsel generic Declaration form MC030(#19 on our forms list) to describe the efforts you made to get your spouse to comply with the law. Attach a copy of the letter you sent to your spouse as an exhibit. If you need more space, use an additional page, title it "Attachment To Declaration", and type the case number at the top of the additional page. A sample attachment is form #20 on our forms list.
 f. Keep the declaration in your file to be submitted to the court later.