BILL ANALYSIS
AB 459
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 459 (Bonnie Lowenthal)
As Amended June 15, 2009
Majority vote
-----------------------------------------------------------------
|ASSEMBLY: |70-0 |(April 16, |SENATE: |40-0 |(June 22, |
| | |2009) | | |2009) |
-----------------------------------------------------------------
Original Committee Reference: JUD.
SUMMARY : Provides a process whereby a party to a dissolution or
nullity of marriage or legal separation can waive disclosure of
specified financial declarations. Specifically, this bill
provides:
1)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 that party's voluntary waiver of receipt of the
disclosure declaration.
2)If a court grants a party's request for voluntary waiver of
receipt of a disclosure declaration under 1) above, that 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: 1) actual fraud where the defrauded party was
kept in ignorance or in some other manner was fraudulently
prevented from fully participating in the proceeding; or, 2)
perjury, as defined in Penal Code Section 118, in the
preliminary or final declaration of disclosure, the waiver of
the final declaration of disclosure, or in the current income
and expense statement.
The Senate amendments allow the noncomplying party to set aside
the judgment in limited instances.
EXISTING LAW :
1)In order to ensure full and accurate disclosure of all assets
AB 459
Page 2
and liabilities, requires parties to a dissolution or legal
separation to serve the other party with a preliminary and
final disclosure declaration, except as specified. Requires
the preliminary disclosure declaration to be served after or
concurrently with service of the petition for dissolution or
legal separation.
2)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 executed
and served a final disclosure declaration and a current income
and expense declaration.
3)If a 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, allows the
complying party to request preparation of the disclosure
document(s). If the noncomplying party fails to comply,
allows the complying party to a) file a motion to compel; or,
b) file a motion for an order preventing the noncomplying
party from presenting evidence on what should have been in the
declaration. Allows for the imposition of fees on the
noncomplying party. Allows the court to set aside a judgment
when the parties have failed to comply with disclosure
requirements.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version approved by the Senate.
FISCAL EFFECT : None
COMMENTS : Currently, parties to a dissolution or nullity of
marriage or legal separation must serve each other with a
preliminary of disclosure listing the parties' assets,
liabilities, and the percentage of ownership in each item not
solely owned by one or the other party. Additionally, unless
the judgment is by default, no final judgment as to property
rights may be entered unless the parties have served the
required declarations on the other party, or they have
stipulated to a mutual waiver of a final disclosure declaration,
having previously exchanged preliminary disclosure declarations.
In case of a default judgment, only the petitioner's
declaration of service of the preliminary disclosure is
required.
AB 459
Page 3
Current law provides two options in the event a party complies
with the service of the preliminary disclosure but the other
party does not. First, the complying party may request
compliance from the other party, and if the noncomplying party
still does not comply, the complying party may do one or both of
following: 1) file a motion to compel a response; or, 2) file a
motion for an order preventing the noncomplying party from
presenting evidence on issues that should have been covered by
the disclosure.
This bill, sponsored by the Family Law Section of the State Bar,
provides the complying party a third alternative. It allows the
complying party to also file a motion showing good cause for the
court to grant the complying party's voluntary waiver of receipt
of the preliminary disclosure or final disclosure declaration.
The sponsor states that allowing the complying party to waive
the receipt of a disclosure from the noncomplying party will
assist in moving a dissolution case forward, without waiting for
the noncomplying party's declaration of disclosure or attempting
to obtain a response when the complying party knows that it will
not be made. According to the author:
Existing law provides that all family law litigants
who have appeared in a dissolution of marriage, legal
separation, nullity or domestic partnership action
serve on the other party a Preliminary and Final
Declaration of Disclosure, which details the assets,
liabilities, income and expenses of the parties.
Existing law permits the waiver of a Final Declaration
of Disclosure, but does not permit a waiver of the
Preliminary Declaration of Disclosure. . . .
Currently, . . . 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 appeared
in the action.
The problem is that in many cases, particularly with
self-represented litigants, both parties appear in the
action by filing a Petition and Response. However,
after filing the initial pleading, one party decides
not to participate in the action, oftentimes because
there aren't many assets, and he or she does not serve
AB 459
Page 4
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 come up with 'creative ways' in which to enter a
judgment to terminate the status.
This bill expands the remedies to allow the party who has
complied with the disclosure statutes the ability to file a
motion requesting the court, upon good cause shown, to grant the
complying party's right to waive receipt of the other party's
disclosure documents. This will allow the complying party to
obtain a judgment and terminate the relationship and divide the
assets and liabilities. The good cause requirement allows the
court to use its discretion to review the facts justifying the
requested waiver and entry of judgment, such as the likelihood
that the noncomplying party will never comply with the
disclosure requirements. If the court decides that the facts do
not justify waiver of the disclosure requirements, the court can
deny the motion and order further actions to be taken before
granting the motion and entering a judgment.
Under current law, a judgment may be set aside if the parties
have not complied with all the disclosure requirements. The
statute specifically provides that failure to comply with the
disclosure requirements is not harmless error. In order not to
penalize the party who complied with all the disclosure
requirements, this bill allows that party to set aside the
judgment, even if that party voluntarily waived receipt of the
disclosure declarations, but prevents the noncomplying party
from setting aside the judgment, unless the noncomplying party
can show either 1) actual fraud where the defrauded party was
kept in ignorance or in some other manner was fraudulently
prevented from fully participating in the proceeding; or, 2)
perjury, as defined in Penal Code Section 118, in the
preliminary or final declaration of disclosure, the waiver of
the final declaration of disclosure, or in the current income
and expense statement. This will allow the complying party to
terminate the legal relationship and divide the assets and
liabilities, but still be protected if the noncomplying party
hid assets from the complying party.
AB 459
Page 5
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
FN: 0001442