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Declaration of Disclosure: Discovery in Family Law for New Attorneys

by Alfonso Martinez, Family Law Facilitator, Ventura County Superior Court

Family law provides challenging and rewarding careers for any young attorney. Divorce and Legal Separation proceedings provide excellent ways to gain experience in family law. Once the parties have successfully divided their debts and assets, they are one step closer to final judgment. The preliminary and final disclosures establish the path toward this end.

The initial discovery in divorce or separation matters begin with the preliminary declaration of disclosures. The Family Code establishes requirements for preliminary and final disclosures. Special exceptions apply to summary dissolution and default judgments. This article provides an overview of the declaration of disclosure process to assist you with establishing an equitable division of your client’s assets and debts.

Family Code sections 2104 and 2105 govern the preliminary and final declaration of disclosure process and requirements. After filing and serving the Petition for either a Dissolution of Marriage or for Legal Separation, the Petitioner initiates the disclosure procedure by preparing, serving, and filing a Preliminary Declaration of Disclosure. This must be done within 60 days of filing the Petition. Similarly, the Respondent must serve his/her Preliminary Declaration of Disclosure within 60 days of filing the Response. These statutory deadlines may be extended by agreement or court order. (F.C. §2104(f)). Final Declarations of Disclosure must be served by each party before or at the time they resolve property or support issues, or no later than 45 days before the case is set for trial, whichever is later. If both parties have made a general appearance in the Dissolution proceeding, neither party can waive his/her obligation to prepare, serve, and file Preliminary Declarations of Disclosure. Conversely, parties can agree to waive their obligation to prepare, serve, and file Final Declarations of Disclosures.

If one party has complied with the disclosure procedure, but the other has not, the complying party may file: 1) motion to compel, 2) motion for an order preventing the noncomplying party from presenting evidence on issues, 3) motion to grant the complying party’s voluntary waiver of receipt of the noncomplying party’s preliminary and final disclosures, or 4) request monetary sanctions. (F.C. §2107). Finally, a court may set aside a judgment if the disclosure requirements were not met. (F.C. §2107(d)).

Disclosure requirements differ in summary dissolution proceedings and in cases involving default judgments. In summary dissolution proceedings the exchange of Preliminary Declarations of Disclosure are done by completing the worksheets provide in the Summary Dissolution Information packet (Judicial Council form FL-810). Final Declarations of Disclosure are not required in summary proceedings.  (See F.C. § 2109).  In true defaults (where there are no marital settlement agreements) only the Petitioner is required to serve Preliminary Declarations of Disclosure and may waive his/her obligations in connection with Final Declarations of Disclosure. In default judgments with agreements, the Family Code requires both parties to exchange Preliminary Declarations of Disclosures. The parties may elect to waive the Final Declaration of Disclosure requirement.

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