BILL ANALYSIS Ó
AB 1406
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1406 (Judiciary Committee)
As Amended June 6, 2012
Majority vote
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|ASSEMBLY: |73-0 |(May 2, 2011) |SENATE: |36-0 |(June 28, |
| | | | | |2012) |
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Original Committee Reference: JUD.
SUMMARY : Provides a specified timeframe for serving mandatory
disclosure declarations in a dissolution proceeding.
Specifically, this bill :
1)Requires that preliminary disclosure declarations include all
tax returns filed by the declarant within the two years prior
to the date that the declarant serves the declaration.
2)Requires the petitioner to 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. Requires 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. Allows the time periods to be
extended by written agreement of the parties or by court
order.
3)Deletes the requirement that a court consider a statement of
issues and contentions from a minor's counsel, since such
statement is no longer permitted.
4)Requires a court, in any paternity proceeding where one party
has requested that the other party pay attorney's fees, to
make findings on whether an award of attorney's fees is
appropriate, whether there is a disparity in access to retain
counsel, and whether one party is able to pay for legal
representation for both parties before awarding attorney's
fees to a party, mirroring how attorney's fees are calculated
in dissolution, custody and support cases.
The Senate amendments make clarifying changes regarding
attorney's fees and minor's counsel.
AB 1406
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EXISTING LAW :
1)Requires, in order to ensure full and accurate disclosure of
all assets and liabilities, 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
separation.
2)Prohibits, except as provided, 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)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 that party's voluntary waiver of receipt of the
disclosure declaration. If a court grants a party's request
for voluntary waiver of receipt of a disclosure declaration,
provides 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.
4)Requires each spouse to act with respect to the other spouse
in the management and control of the community assets and
liabilities in accordance with the general rules governing
fiduciary relationships, until such time as the assets and
liabilities have been divided by the parties or by a court.
Includes the obligation to make full disclosure to the other
spouse of all material facts and information regarding the
existence, characterization, and valuation of all assets in
which the community has or may have an interest and debts for
which the community is or may be liable, and to provide equal
access to all information, records, and books that pertain to
the value and character of those assets and debts, upon
request.
5)Provides that the court, in a custody or visitation
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proceeding, may appoint minor's counsel if the appointment is
in the best interest of the child. Minor's counsel and the
court must comply with specified rules of court. Minor's
counsel must serve notice and pleadings, and present evidence
consistent with requirements for parties.
6)Provides that an award of attorney's fees in paternity cases
shall be based on the respective income and needs of the
parties, and any factors affecting the parties' ability to
pay.
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 disclosure declaration listing the parties' assets
and 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.
Despite these clear requirements, some parties still try to hide
their assets and delay the proceedings by failing to serve their
disclosure declarations. This non-controversial Assembly
Judiciary Committee bill is based on recommendations of the
Elkins Family Law Task Force. The Task Force unanimously
adopted over 100 recommendations, including that the disclosure
documents include tax returns from the last two years and that
the preliminary disclosure declaration be served by the
petitioner within 60 days of filing of the petition and by the
respondent within 60 days of filing of the response. This bill
seeks to codify those recommendations in statute. This bill
also provides that the time period may be extended by written
agreement of the parties or by court order.
This bill is consistent with existing law, which requires
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spouses, until assets and liabilities have been divided, to make
full disclosure to each other of all information on all assets
in which the community may have an interest and all debts for
which the community may be liable, and to provide access to all
information, records, and books that pertain to the value and
character of those assets and debts. It is also consistent with
the existing Judicial Council Income and Expense Declaration,
which requires copies of federal tax returns to be attached.
This bill also makes two non-controversial and technical changes
to AB 939 (Judiciary Committee), Chapter 352, Statutes of 2010,
which implemented recommendations of the Elkins Family Law Task
Force. First, the bill applies the attorney's fees standard
developed by the Elkins Task Force and established in AB 939 for
dissolution, child support and custody cases to paternity cases
as well. Second, the bill eliminates reference to a minor's
counsel statement of issues and contentions, which was
eliminated by changes in AB 939, but one provision was
inadvertently left unchanged.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0004180