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Chapter 9. Disclosure Of Assets And Liabilities of California Family Law Code >> Division 6. >> Part 1. >> Chapter 9.
The Legislature finds and declares the following:
(a) It is the policy of the State of California (1) to marshal, preserve, and protect community and quasi-community assets and liabilities that exist at the date of separation so as to avoid dissipation of the community estate before distribution, (2) to ensure fair and sufficient child and spousal support awards, and (3) to achieve a division of community and quasi-community assets and liabilities on the dissolution or nullity of marriage or legal separation of the parties as provided under California law.
(b) Sound public policy further favors the reduction of the adversarial nature of marital dissolution and the attendant costs by fostering full disclosure and cooperative discovery.
(c) In order to promote this public policy, a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for dissolution of marriage or legal separation of the parties, regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties. Moreover, each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these issues, each party will have a full and complete knowledge of the relevant underlying facts.
(a) It is the policy of the State of California (1) to marshal, preserve, and protect community and quasi-community assets and liabilities that exist at the date of separation so as to avoid dissipation of the community estate before distribution, (2) to ensure fair and sufficient child and spousal support awards, and (3) to achieve a division of community and quasi-community assets and liabilities on the dissolution or nullity of marriage or legal separation of the parties as provided under California law.
(b) Sound public policy further favors the reduction of the adversarial nature of marital dissolution and the attendant costs by fostering full disclosure and cooperative discovery.
(c) In order to promote this public policy, a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for dissolution of marriage or legal separation of the parties, regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties. Moreover, each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these issues, each party will have a full and complete knowledge of the relevant underlying facts.
Unless the provision or context otherwise requires, the
following definitions apply to this chapter:
(a) "Asset" includes, but is not limited to, any real or personal property of any nature, whether tangible or intangible, and whether currently existing or contingent.
(b) "Default judgment" does not include a stipulated judgment or any judgment pursuant to a marital settlement agreement.
(c) "Earnings and accumulations" includes income from whatever source derived, as provided in Section 4058.
(d) "Expenses" includes, but is not limited to, all personal living expenses, but does not include business related expenses.
(e) "Income and expense declaration" includes the Income and Expense Declaration forms approved for use by the Judicial Council, and any other financial statement that is approved for use by the Judicial Council in lieu of the Income and Expense Declaration, if the financial statement form satisfies all other applicable criteria.
(f) "Liability" includes, but is not limited to, any debt or obligation, whether currently existing or contingent.
(a) "Asset" includes, but is not limited to, any real or personal property of any nature, whether tangible or intangible, and whether currently existing or contingent.
(b) "Default judgment" does not include a stipulated judgment or any judgment pursuant to a marital settlement agreement.
(c) "Earnings and accumulations" includes income from whatever source derived, as provided in Section 4058.
(d) "Expenses" includes, but is not limited to, all personal living expenses, but does not include business related expenses.
(e) "Income and expense declaration" includes the Income and Expense Declaration forms approved for use by the Judicial Council, and any other financial statement that is approved for use by the Judicial Council in lieu of the Income and Expense Declaration, if the financial statement form satisfies all other applicable criteria.
(f) "Liability" includes, but is not limited to, any debt or obligation, whether currently existing or contingent.
(a) From the date of separation to the date of the
distribution of the community or quasi-community asset or liability
in question, each party is subject to the standards provided in
Section 721, as to all activities that affect the assets and
liabilities of the other party, including, but not limited to, the
following activities:
(1) The accurate and complete disclosure of all assets and liabilities in which the party has or may have an interest or obligation and all current earnings, accumulations, and expenses, including an immediate, full, and accurate update or augmentation to the extent there have been any material changes.
(2) The accurate and complete written disclosure of any investment opportunity, business opportunity, or other income-producing opportunity that presents itself after the date of separation, but that results from any investment, significant business activity outside the ordinary course of business, or other income-producing opportunity of either spouse from the date of marriage to the date of separation, inclusive. The written disclosure shall be made in sufficient time for the other spouse to make an informed decision as to whether he or she desires to participate in the investment opportunity, business, or other potential income-producing opportunity, and for the court to resolve any dispute regarding the right of the other spouse to participate in the opportunity. In the event of nondisclosure of an investment opportunity, the division of any gain resulting from that opportunity is governed by the standard provided in Section 2556.
(3) The operation or management of a business or an interest in a business in which the community may have an interest.
(b) From the date that a valid, enforceable, and binding resolution of the disposition of the asset or liability in question is reached, until the asset or liability has actually been distributed, each party is subject to the standards provided in Section 721 as to all activities that affect the assets or liabilities of the other party. Once a particular asset or liability has been distributed, the duties and standards set forth in Section 721 shall end as to that asset or liability.
(c) From the date of separation to the date of a valid, enforceable, and binding resolution of all issues relating to child or spousal support and professional fees, each party is subject to the standards provided in Section 721 as to all issues relating to the support and fees, including immediate, full, and accurate disclosure of all material facts and information regarding the income or expenses of the party.
(1) The accurate and complete disclosure of all assets and liabilities in which the party has or may have an interest or obligation and all current earnings, accumulations, and expenses, including an immediate, full, and accurate update or augmentation to the extent there have been any material changes.
(2) The accurate and complete written disclosure of any investment opportunity, business opportunity, or other income-producing opportunity that presents itself after the date of separation, but that results from any investment, significant business activity outside the ordinary course of business, or other income-producing opportunity of either spouse from the date of marriage to the date of separation, inclusive. The written disclosure shall be made in sufficient time for the other spouse to make an informed decision as to whether he or she desires to participate in the investment opportunity, business, or other potential income-producing opportunity, and for the court to resolve any dispute regarding the right of the other spouse to participate in the opportunity. In the event of nondisclosure of an investment opportunity, the division of any gain resulting from that opportunity is governed by the standard provided in Section 2556.
(3) The operation or management of a business or an interest in a business in which the community may have an interest.
(b) From the date that a valid, enforceable, and binding resolution of the disposition of the asset or liability in question is reached, until the asset or liability has actually been distributed, each party is subject to the standards provided in Section 721 as to all activities that affect the assets or liabilities of the other party. Once a particular asset or liability has been distributed, the duties and standards set forth in Section 721 shall end as to that asset or liability.
(c) From the date of separation to the date of a valid, enforceable, and binding resolution of all issues relating to child or spousal support and professional fees, each party is subject to the standards provided in Section 721 as to all issues relating to the support and fees, including immediate, full, and accurate disclosure of all material facts and information regarding the income or expenses of the party.
In order to provide full and accurate disclosure of all
assets and liabilities in which one or both parties may have an
interest, each party to a proceeding for dissolution of the marriage
or legal separation of the parties shall serve on the other party a
preliminary declaration of disclosure under Section 2104, unless
service of the preliminary declaration of disclosure is not required
pursuant to Section 2110, and a final declaration of disclosure under
Section 2105, unless service of the final declaration of disclosure
is waived pursuant to Section 2105 or 2110, and shall file proof of
service of each with the court.
(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.
(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.
(a) Except by court order for good cause, before or at the
time the parties enter into an agreement for the resolution of
property or support issues other than pendente lite support, or, if
the case goes to trial, no later than 45 days before the first
assigned trial date, each party, or the attorney for the party in
this matter, shall serve on the other party a final declaration of
disclosure and a current income and expense declaration, executed
under penalty of perjury on a form prescribed by the Judicial
Council, unless the parties mutually waive the final declaration of
disclosure. The commission of perjury on the final declaration of
disclosure by a party 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.
(b) The final declaration of disclosure shall include all of the following information:
(1) All material facts and information regarding the characterization of all assets and liabilities.
(2) All material facts and information regarding the valuation of all assets that are contended to be community property or in which it is contended the community has an interest.
(3) All material facts and information regarding the amounts of all obligations that are contended to be community obligations or for which it is contended the community has liability.
(4) All material facts and information regarding the earnings, accumulations, and expenses of each party that have been set forth in the income and expense declaration.
(c) In making an order setting aside a judgment for failure to comply with this section, the court may limit the set aside to those portions of the judgment materially affected by the nondisclosure.
(d) The parties may stipulate to a mutual waiver of the requirements of subdivision (a) concerning the final declaration of disclosure, by execution of a waiver under penalty of perjury entered into in open court or by separate stipulation. The waiver shall include all of the following representations:
(1) Both parties have complied with Section 2104 and the preliminary declarations of disclosure have been completed and exchanged.
(2) Both parties have completed and exchanged a current income and expense declaration, that includes all material facts and information regarding that party's earnings, accumulations, and expenses.
(3) Both parties have fully complied with Section 2102 and have fully augmented the preliminary declarations of disclosure, including disclosure of all material facts and information regarding the characterization of all assets and liabilities, the valuation of all assets that are contended to be community property or in which it is contended the community has an interest, and the amounts of all obligations that are contended to be community obligations or for which it is contended the community has liability.
(4) The waiver is knowingly, intelligently, and voluntarily entered into by each of the parties.
(5) Each party understands that this waiver does not limit the legal disclosure obligations of the parties, but rather is a statement under penalty of perjury that those obligations have been fulfilled. Each party further understands that noncompliance with those obligations will result in the court setting aside the judgment.
(b) The final declaration of disclosure shall include all of the following information:
(1) All material facts and information regarding the characterization of all assets and liabilities.
(2) All material facts and information regarding the valuation of all assets that are contended to be community property or in which it is contended the community has an interest.
(3) All material facts and information regarding the amounts of all obligations that are contended to be community obligations or for which it is contended the community has liability.
(4) All material facts and information regarding the earnings, accumulations, and expenses of each party that have been set forth in the income and expense declaration.
(c) In making an order setting aside a judgment for failure to comply with this section, the court may limit the set aside to those portions of the judgment materially affected by the nondisclosure.
(d) The parties may stipulate to a mutual waiver of the requirements of subdivision (a) concerning the final declaration of disclosure, by execution of a waiver under penalty of perjury entered into in open court or by separate stipulation. The waiver shall include all of the following representations:
(1) Both parties have complied with Section 2104 and the preliminary declarations of disclosure have been completed and exchanged.
(2) Both parties have completed and exchanged a current income and expense declaration, that includes all material facts and information regarding that party's earnings, accumulations, and expenses.
(3) Both parties have fully complied with Section 2102 and have fully augmented the preliminary declarations of disclosure, including disclosure of all material facts and information regarding the characterization of all assets and liabilities, the valuation of all assets that are contended to be community property or in which it is contended the community has an interest, and the amounts of all obligations that are contended to be community obligations or for which it is contended the community has liability.
(4) The waiver is knowingly, intelligently, and voluntarily entered into by each of the parties.
(5) Each party understands that this waiver does not limit the legal disclosure obligations of the parties, but rather is a statement under penalty of perjury that those obligations have been fulfilled. Each party further understands that noncompliance with those obligations will result in the court setting aside the judgment.
Except as provided in subdivision (d) of Section 2105,
Section 2110, or absent good cause as provided in Section 2107, no
judgment shall be entered with respect to the parties' property
rights without each party, or the attorney for that party in this
matter, having executed and served a copy of the final declaration of
disclosure and current income and expense declaration. Each party,
or his or her attorney, shall execute and file with the court a
declaration signed under penalty of perjury stating that service of
the final declaration of disclosure and current income and expense
declaration was made on the other party or that service of the final
declaration of disclosure has been waived pursuant to subdivision (d)
of Section 2105 or in Section 2110.
(a) If one party fails to serve on the other party a
preliminary declaration of disclosure under Section 2104, unless that
party is not required to serve a preliminary declaration of
disclosure pursuant to Section 2110, or a final declaration of
disclosure under Section 2105, or fails to provide the information
required in the respective declarations with sufficient
particularity, and if the other party has served the respective
declaration of disclosure on the noncomplying party, the complying
party may, within a reasonable time, request preparation of the
appropriate declaration of disclosure or further particularity.
(b) If the noncomplying party fails to comply with a request under subdivision (a), the complying party may do one or more of the following:
(1) File a motion to compel a further response.
(2) File a motion for an order preventing the noncomplying party from presenting evidence on issues that should have been covered in the declaration of disclosure.
(3) File a motion showing good cause for the court to grant the complying party's voluntary waiver of receipt of the noncomplying party's preliminary declaration of disclosure pursuant to Section 2104 or final declaration of disclosure pursuant to Section 2105. The voluntary waiver does not affect the rights enumerated in subdivision (d).
(c) If a party fails to comply with any provision of this chapter, the court shall, in addition to any other remedy provided by law, impose money sanctions against the noncomplying party. Sanctions shall be in an amount sufficient to deter repetition of the conduct or comparable conduct, and shall include reasonable attorney's fees, costs incurred, or both, unless the court finds that the noncomplying party acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
(d) Except as otherwise provided in this subdivision, if a court enters a judgment when the parties have failed to comply with all disclosure requirements of this chapter, the court shall set aside the judgment. The failure to comply with the disclosure requirements does not constitute harmless error. If the court granted the complying party's voluntary waiver of receipt of the noncomplying party's preliminary declaration of disclosure pursuant to paragraph (3) of subdivision (b), the court shall set aside the judgment only at the request of the complying party, unless the motion to set aside the judgment is based on one of the following:
(1) Actual fraud if the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding.
(2) Perjury, as defined in Section 118 of the Penal Code, in the preliminary or final declaration of disclosure, in the waiver of the final declaration of disclosure, or in the current income and expense statement.
(e) Upon the motion to set aside judgment, the court may order the parties to provide the preliminary and final declarations of disclosure that were exchanged between them. Absent a court order to the contrary, the disclosure declarations shall not be filed with the court and shall be returned to the parties.
(b) If the noncomplying party fails to comply with a request under subdivision (a), the complying party may do one or more of the following:
(1) File a motion to compel a further response.
(2) File a motion for an order preventing the noncomplying party from presenting evidence on issues that should have been covered in the declaration of disclosure.
(3) File a motion showing good cause for the court to grant the complying party's voluntary waiver of receipt of the noncomplying party's preliminary declaration of disclosure pursuant to Section 2104 or final declaration of disclosure pursuant to Section 2105. The voluntary waiver does not affect the rights enumerated in subdivision (d).
(c) If a party fails to comply with any provision of this chapter, the court shall, in addition to any other remedy provided by law, impose money sanctions against the noncomplying party. Sanctions shall be in an amount sufficient to deter repetition of the conduct or comparable conduct, and shall include reasonable attorney's fees, costs incurred, or both, unless the court finds that the noncomplying party acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
(d) Except as otherwise provided in this subdivision, if a court enters a judgment when the parties have failed to comply with all disclosure requirements of this chapter, the court shall set aside the judgment. The failure to comply with the disclosure requirements does not constitute harmless error. If the court granted the complying party's voluntary waiver of receipt of the noncomplying party's preliminary declaration of disclosure pursuant to paragraph (3) of subdivision (b), the court shall set aside the judgment only at the request of the complying party, unless the motion to set aside the judgment is based on one of the following:
(1) Actual fraud if the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding.
(2) Perjury, as defined in Section 118 of the Penal Code, in the preliminary or final declaration of disclosure, in the waiver of the final declaration of disclosure, or in the current income and expense statement.
(e) Upon the motion to set aside judgment, the court may order the parties to provide the preliminary and final declarations of disclosure that were exchanged between them. Absent a court order to the contrary, the disclosure declarations shall not be filed with the court and shall be returned to the parties.
At any time during the proceeding, the court has the
authority, on application of a party and for good cause, to order the
liquidation of community or quasi-community assets so as to avoid
unreasonable market or investment risks, given the relative nature,
scope, and extent of the community estate. However, in no event shall
the court grant the application unless, as provided in this chapter,
the appropriate declaration of disclosure has been served by the
moving party.
The provisions of this chapter requiring a final declaration
of disclosure do not apply to a summary dissolution of marriage, but
a preliminary declaration of disclosure is required.
In the case of a default judgment, the petitioner may waive
the final declaration of disclosure requirements provided in this
chapter, and shall not be required to serve a final declaration of
disclosure on the respondent nor receive a final declaration of
disclosure from the respondent. However, a preliminary declaration of
disclosure by the petitioner is required unless the petitioner
served the summons and petition by publication or posting pursuant to
court order and the respondent has defaulted.
A disclosure required by this chapter does not abrogate the
attorney work product privilege or impede the power of the court to
issue protective orders.
The Judicial Council shall adopt appropriate forms and modify
existing forms to effectuate the purposes of this chapter.
This chapter applies to any proceeding commenced on or after
January 1, 1993.
