BILL NUMBER: AB 1406	CHAPTERED
	BILL TEXT

	CHAPTER  107
	FILED WITH SECRETARY OF STATE  JULY 13, 2012
	APPROVED BY GOVERNOR  JULY 13, 2012
	PASSED THE SENATE  JUNE 28, 2012
	PASSED THE ASSEMBLY  JULY 2, 2012
	AMENDED IN SENATE  JUNE 6, 2012
	AMENDED IN ASSEMBLY  APRIL 25, 2011

INTRODUCED BY   Committee on Judiciary (Feuer (Chair), Atkins,
Dickinson, Huber, Huffman, Monning, and Wieckowski)

                        MARCH 7, 2011

   An act to amend Sections 2104 and 7605 of, and to repeal Section
3151.5 of, the Family Code, relating to dissolution of marriage.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1406, Committee on Judiciary. Dissolution of marriage:
proceedings.
   (1) Existing law requires each party to a proceeding for
dissolution or nullity of marriage or legal separation of the parties
to serve on the other party a preliminary declaration of disclosure
of assets, as specified, after or concurrently with service of the
petition for dissolution.
   This bill instead would require the petitioner to serve the
preliminary declaration of disclosure either concurrently with the
petition for dissolution or within 60 days of filing the petition,
and would require the respondent to serve the other party with the
preliminary declaration of disclosure either concurrently with the
response to the petition or within 60 days of filing the response,
unless those time periods are extended by written agreement of the
parties or by court order. The bill also would require the
preliminary declaration of disclosure of assets to include all tax
returns filed by the declarant within the 2 years prior to the date
that the party served the declaration.
   (2) Existing law governs determinations of child custody in
proceedings for dissolution of marriage, nullity of marriage, legal
separation of the parties, petitions for exclusive custody of the
child, and under the Domestic Violence Prevention Act. Under existing
law, a court is authorized to appoint private counsel to represent
the child's interests in a custody or visitation proceeding if the
court determines that appointing counsel would be in the best
interest of the child. The child's appointed counsel is required to
gather and present facts that bear on the best interest of the child,
including the child's wishes if the child so desires. Under existing
law, the court is required to consider a statement of issues and
contentions of the child's counsel when the court determines custody
or visitation.
   This bill would eliminate the requirement that the court consider
a child's attorney's statement of issues and contentions when the
court determines custody or visitation.
   (3) Existing law authorizes the court, in dissolution of marriage,
nullity of marriage, legal separation, and child custody and
visitation proceedings, to order any party, except a governmental
entity, to pay the amount reasonably necessary for attorney's fees
and for the cost of maintaining or defending the proceeding, subject
to augmentation or modification from time to time and before entry of
judgment. Under existing law, a party who lacks the financial
ability to hire an attorney may ask the court, as an in pro per
litigant, to order the other party to pay a reasonable amount to
allow the unrepresented party to retain an attorney in a timely
manner.
   This bill would require the court, in addressing a request for
attorney's fees and costs in child custody and visitation
proceedings, to order attorney's fees and costs for an in pro per
litigant if the court finds that there is a disparity in access to
funds to retain counsel and that one party is able to pay for the
legal representation of both parties.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 2104 of the Family Code is amended to read:
   2104.  (a) Except by court order for good cause, as provided in
Section 2107, in the time period set forth in subdivision (f), 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.
   (b) 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.
   (c) 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:
   (1) 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.
   (2) 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 of the parties. The preliminary
declaration may also set forth the declarant's characterization of
each asset or liability.
   (d) A declarant may amend his or her preliminary declaration of
disclosure without leave of the court. Proof of service of any
amendment shall be filed with the court.
   (e) Along with the preliminary declaration of disclosure, each
party shall provide the other party with a completed income and
expense declaration unless an income and expense declaration has
already been provided and is current and valid.
   (f) The petitioner shall serve the other party with the
preliminary declaration of disclosure either concurrently with the
petition for dissolution, or within 60 days of filing the petition.
The respondent shall serve the other party with the preliminary
declaration of disclosure either concurrently with the response to
the petition, or within 60 days of filing the response. The time
periods specified in this subdivision may be extended by written
agreement of the parties or by court order.
  SEC. 2.  Section 3151.5 of the Family Code is repealed.
  SEC. 3.  Section 7605 of the Family Code is amended to read:
   7605.  (a) In any proceeding to establish physical or legal
custody of a child or a visitation order under this part, and in any
proceeding subsequent to entry of a related judgment, the court shall
ensure that each party has access to legal representation to
preserve each party's rights by ordering, if necessary based on the
income and needs assessments, one party, except a government entity,
to pay to the other party, or to the other party's attorney, whatever
amount is reasonably necessary for attorney's fees and for the cost
of maintaining or defending the proceeding during the pendency of the
proceeding.
   (b) When a request for attorney's fees and costs is made under
this section, the court shall make findings on whether an award of
attorney's fees and costs is appropriate, whether there is a
disparity in access to funds to retain counsel, and whether one party
is able to pay for legal representation of both parties. If the
findings demonstrate disparity in access and ability to pay, the
court shall make an order awarding attorney's fees and costs. A party
who lacks the financial ability to hire an attorney may request, as
an in pro per litigant, that the court order the other party, if that
other party has the financial ability, to pay a reasonable amount to
allow the unrepresented party to retain an attorney in a timely
manner before proceedings in the matter go forward.
   (c) Attorney's fees and costs within this section may be awarded
for legal services rendered or costs incurred before or after the
commencement of the proceeding.
   (d) The court shall augment or modify the original award for
attorney's fees and costs as may be reasonably necessary for the
prosecution or defense of a proceeding described in subdivision (a),
or any proceeding related thereto, including after any appeal has
been concluded.
   (e) Except as provided in subdivision (f), an application for a
temporary order making, augmenting, or modifying an award of attorney'
s fees, including a reasonable retainer to hire an attorney, or
costs, or both, shall be made by motion on notice or by an order to
show cause during the pendency of any proceeding described in
subdivision (a).
   (f) The court shall rule on an application for fees under this
section within 15 days of the hearing on the motion or order to show
cause. An order described in subdivision (a) may be made without
notice by an oral motion in open court at either of the following
times:
   (1) At the time of the hearing of the cause on the merits.
   (2) At any time before entry of judgment against a party whose
default has been entered pursuant to Section 585 or 586 of the Code
of Civil Procedure. The court shall rule on any motion made pursuant
to this subdivision within 15 days and prior to the entry of any
judgment.