BILL ANALYSIS
------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 459|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: AB 459
Author: Bonnie Lowenthal (D)
Amended: 6/15/09 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 6/9/09
AYES: Corbett, Harman, Florez, Leno, Walters
ASSEMBLY FLOOR : 70-0, 4/16/09 - See last page for vote
SUBJECT : Dissolution: disclosure
SOURCE : Family Law Section of the State Bar
DIGEST : This bill creates a process whereby a part to a
dissolution or separation can waive disclosure of specified
financial declarations.
ANALYSIS : Existing law provides that in order to ensure
full and accurate disclosure of all assets and liabilities,
parties to a dissolution or legal separation must serve the
other party with a preliminary and final disclosure
declaration, except as specified. Existing law requires
the preliminary disclosure declaration to be served after
or concurrently with service of the petition for
dissolution or separation. (Family Code Sections 21-3-04.)
Existing law, except as provided, prohibits the court from
entering a judgment regarding the parties' property rights
in a dissolution unless each party, or their attorney, has
CONTINUED
AB 459
Page
2
executed and served a final disclosure declaration and a
current income and expense declaration. (Family Code
Section 2106.)
Existing law provides that if party fails to serve either
the preliminary or final disclosure declaration on the
other party and if the other party has served the required
declarations, the complying party may request preparation
of the disclosure documents(s). If the noncomplying party
fails to comply, excisting law allows the complying party
to (1) file a motion to compel; or (2) file a motion for an
order preventing the noncomplying party from presenting
evidence on what should have been in the declaration.
(Family Code Section 2107.)
Existing law allows for the imposition of fees on the
noncomplying party. (Family Code Section 2107.)
Existing law allows the court to set aside a judgment when
the parties have failed to comply with disclosure
requirements. (Family Code Section 2107.)
This bill provides that if a party to a dissolution or
legal separation fails to serve the other party with a
preliminary or final disclosure declaration, and the other
party has served the respective declaration, that other
party may, in addition to other remedies, file a motion
showing good cause for the court to grant the party's
voluntary waiver of receipt of the disclosure declaration.
This bill provides that if a court grants a party's request
for voluntary waiver of receipt of a disclosure
declaration, the court may set aside the judgment entered
after the waiver for failure to comply with the disclosure
requirements only at the request of the party who complied
with the disclosure requirements, 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
AB 459
Page
3
the waiver of the final declaration of disclosure, or in
the current income and expense statement.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/15/09)
Family Law Section of the State Bar (source)
ARGUMENTS IN SUPPORT : According to the author's office,
"Currently, the only remedy for [a] complying party to
obtain a Preliminary Declaration of Disclosure from the
non-complying party is to file a motion to compel the
non-complying party to produce the disclosure documents and
then, if they are still not produced, to file a motion to
prohibit the non-complying party from producing evidence at
trial on those issues covered by the Declaration of
Disclosure (property and income issues). However, there is
no provision allowing the complying party to obtain a
judgment of dissolution of marriage, nullity, legal
separation or domestic partnership if both sides do not
comply with the disclosure requirements, if both sides have
appears in the action.
"The problem is that in many cases, particularly with
self-represented litigants, both parties appear in action
filing a Petition and Response. However, after filing the
initial pleading, one party decides not to participate in
the action, often times because there aren't many assets,
and he or she does not serve the required Declaration of
Disclosure on the other party. When this occurs, the
complying party cannot obtain a judgment and terminate the
parties' relationship. A default cannot be taken because
the other party has appeared. When this situation occurs
the litigants either cannot obtain a judgment terminating
their relationship status or the court must show up with
'creative ways' in which to enter a judgment to terminate
the status."
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Blakeslee, Block, Blumenfield, Brownley,
AB 459
Page
4
Buchanan, Carter, Conway, Cook, Coto, Davis, De Leon,
DeVore, Duvall, Emmerson, Eng, Evans, Feuer, Fletcher,
Fong, Fuentes, Furutani, Gaines, Galgiani, Garrick,
Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill,
Huffman, Jeffries, Jones, Knight, Krekorian, Lieu, Logue,
Bonnie Lowenthal, Ma, Miller, Monning, Nestande, Niello,
Nielsen, John A. Perez, V. Manuel Perez, Portantino,
Price, Ruskin, Salas, Saldana, Silva, Smyth, Solorio,
Audra Strickland, Swanson, Torlakson, Torres, Torrico,
Tran, Villines, Yamada, Bass
NO VOTE RECORDED: Tom Berryhill, Caballero, Charles
Calderon, Chesbro, De La Torre, Fuller, Huber, Mendoza,
Nava, Skinner
RJG:cm 6/15/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****