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Divorce: Completing Your Preliminary Declaration of Disclosure

In a divorce proceeding, Family Code 2104 tells us what each party must disclose to the other party in order to advance the divorce case to a settlement conference or a trial:

(1) 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.

(2) 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.

(3) 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:

                (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 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.

THERE ARE FOUR DECLARATION (4) FORMS THAT MUST BE COMPLETED BY EACH PARTY TO A DIVORCE:

The forms are (1) Income and Expense Declaration [FL-150]; (2) Schedule of Assets and Debts [FL-142] (3) Preliminary Declaration of Disclosure [FL-140] and (4) Declaration Regarding Service of Declaration of Disclosure [FL-141] .

 California law requires that all litigants in a family law action for dissolution of legal separation complete these forms and serve them on the other side.  Neither the Schedule of Assets and Debts nor the Preliminary Declaration of Disclosure forms shall be filed with the court, but both will be served on the other party.  Both the Income and Expense Declaration and the Declaration Regarding Service of Declaration of Disclosure will be filed with the court AND served on the other party.

Income and Expense Declaration [FL-150]:   Once you have completed the form, you need to attached  your last three pay stubs, unemployment stub, SDI or disability stubs, etc. reflecting any money you are currently receiving or have received within the last twelve (12) months. If you are self-employed, please provide a current year-to-date profit and loss statement.  The top of page 2 of the Income and Expense Declaration informs you that you must bring your latest tax return to the court proceeding [The tax return should not be attached to the Income and Expense Declaration, which upon filing shall become part of the court’s public file.

Schedule of Assets and Debts [FL-142]:   Complete this form to the best of your ability.  If you believe certain items are your, or the other side’s, separate property, please put an H or W in the column entitled Sep Prop.  You should also attach any and all documents you have that substantiate any entries made by you in the form.  This includes deeds, bank and credit union statements, credit card statements, pension or deferred compensation statements, stock and stock option information, investment account statements, car registration or valuation documents such as Kelly Blue Book if you have them, property valuations, loan statements, etc.  The more you can provide, the better off you will be in the long run. Make sure that no asset is omitted on this form.

 

Preliminary Declaration of Disclosure [FL-140]: At the outset of the case, make sure to check the box for which party you are.  Next, check the box for “preliminary” meaning that this is your Preliminary Declaration of Disclosure at the start of the case.  Check boxes 1 and 2, stating that you have provided the Income and Expense Declaration and the Schedule of Assets and Debts.  If you provide your last 2 years of tax returns, check box 3.  Last, date and sign.  Upon completion of the Income and Expense Declaration, the Schedule of Assets and Debts, and the Declaration of Disclosure, you should have these forms served by a person over 18 years of age on the other party or the other party’s attorney and make sure that the server completes a Proof of Service form, FL-335 form if by mail, or  FL-330 if by personal service.  Also, be sure to file your Income and Expense Declaration with the court.

Declaration Regarding Service of Declaration of Disclosure [FL-141]: After you have served your Declaration of Disclosure along with your Income and Expense Declaration and your Schedule of Assets and Debts, you may now file your FL-141 form which lets the Court know that you have complied with your mandatory disclosures.

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