Do Not Overlook Declarations of Disclosure

After or concurrently with service of the petition for dissolution or nullity of marriage or legal separation of the parties, 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. Unless the parties have stipulated to a mutual waiver of the final declarations of disclosure (see below), the preliminary declarations of disclosure are essentially only a general “inventory” of the parties' respective assets and liabilities. Unlike the final disclosure declarations, characterization and valuation details are not required.

Specifically, each party's preliminary declaration of disclosure “shall set forth with sufficient particularity, which a person of reasonable and ordinary intelligence can ascertain,” the following information (Fam.C. § 2104(c)):

• 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. [Fam.C. § 2104(c)(1)]

• 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. [Fam.C. § 2104(c)(2)]

• Optionally, the declarant's characterization of each asset and liability. [Fam.C. § 2104(c)(2)—“may also set forth the declarant's characterization of each asset or liability” (emphasis added)]

Each party's preliminary declaration of disclosure must be accompanied by a completed income and expense declaration ... unless a “current and valid” income and expense declaration has already been provided. [Fam.C. § 2104(e)]

A preliminary declaration of disclosure may be amended without leave of court. [Fam.C. § 2104(d) (also requiring proof of service of any amendment to be filed with court)]

Indeed, though stated optionally in § 2104(d) (“declarant may amend ... ”), appropriate amendments as required by the circumstances are mandatory: The duty to disclose includes “a continuing duty to immediately, fully, and accurately update and augment” a party's disclosures “to the extent there have been any material changes ... ” [Fam.C. §§ 2100(c) (emphasis added), 2102(a)(1)]

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.

Article Submitted By: Attorney Shannon M. Jenkins