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- Step 5
- Preliminary Declaration
Of Disclosure
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- 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.
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- Two Disclosures must be made:
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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. |
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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.
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- 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.
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- 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,":
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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. |
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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.
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c. |
- Optionally, the declarant's characterization of each asset
and liability as being community property, separate property,
quasi-community property, or "mixed."
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- 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.
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- 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.
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- 2. Prepare
The Preliminary Disclosure Package(s): Unless your
spouse has defaulted, you and your spouse will both need to prepare
the following documents:
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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: |
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b. |
- Schedule of Assets
and Debts (Judicial Counsel Form 1292.11, #14 on the forms
list)
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c. |
- Income and Expense
Declaration (Judicial Counsel Form 1285.50, Form #15 on the
forms list)
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- 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.
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- 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.
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- 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.
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- 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:
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a. |
Follow the procedure described above and serve your spouse
with your disclosure. |
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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.
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c. |
- Keep a copy of the letter.
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d. |
Give your spouse a reasonable time - at least 30 days - to
comply. |
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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. |
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f. |
Keep the declaration in your file to be submitted to the court
later. |
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