Senate Bill No. 340

Introduced by Senator Anderson

February 23, 2015

An act to amend Sections 2103, 2104, 2107, and 2110 of the Family Code, relating to dissolution.

LEGISLATIVE COUNSEL’S DIGEST

SB 340, as introduced, Anderson. Dissolution: disclosure.

Existing law requires each party to a proceeding for dissolution of marriage or legal separation to serve on the other party a preliminary declaration of disclosure of assets, as specified, and a final declaration of disclosure, as specified. Existing law requires each party to serve a preliminary declaration of disclosure either concurrently with the petition for dissolution, or within 60 days of filing the petition for dissolution of marriage. Existing law specifies, in the case of a default judgment, that a petitioner shall not be required to serve or receive a final declaration of disclosure, but a preliminary declaration of disclosure by the petitioner is still required.

This bill would provide that a preliminary declaration of disclosure is not required by a petitioner if the petitioner served the summons and petition by publication or posting pursuant to court order and the respondent has defaulted. The bill would require, when a petitioner has served the summons and petition by publication or posting pursuant to court order and the respondent files a response prior to default judgment being entered, the petitioner to serve the respondent with a preliminary declaration of disclosure within 30 days of the response being filed. The bill would make other related, conforming changes.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 2103 of the Family Code is amended to
read:

2103.  

In order to provide full and accurate disclosure of all
assets and liabilities in which one or both parties may have an
interest, each party to a proceeding for dissolution of the marriage
or legal separation of the parties shall serve on the other party a
preliminary declaration of disclosure under Section begin delete 2104 end delete begin insert 2104, end insert
begin insert unless service of the preliminary declaration of disclosure is end insert begin insert not
required pursuant to Section 2110, end insert and a final declaration of
disclosure under Section 2105, unless service of the final
declaration of disclosure is waived pursuant to Section 2105 or
2110, and shall file proof of service of each with the court.

SEC. 2.  

Section 2104 of the Family Code is amended to read:

2104.  

(a) Except by court order for good cause, as provided
in Section 2107, begin insert end insert begin insert or when service of the preliminary declaration
of disclosure is end insert begin insert not required pursuant to Section 2110, end insert 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 begin delete where end delete begin insert when end insert 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. begin insert When a
petitioner serves the summons and petition by publication or
posting pursuant to court order and the respondent files a response
prior to a default judgment being entered, the petitioner shall serve
the other party with the preliminary declaration of disclosure
within 30 days of the response being filed. end insert 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. 3.  

Section 2107 of the Family Code is amended to read:

2107.  

(a) If one party fails to serve on the other party a
preliminary declaration of disclosure under Section begin delete 2104 end delete begin insert 2104, end insert
begin insert unless that party is not required to serve a preliminary declaration
of disclosure pursuant to Section 2110, end insert or a final declaration of
disclosure under Section 2105, or fails to provide the information
required in the respective declarations with sufficient particularity,
and if the other party has served the respective declaration of
disclosure on the noncomplying party, the complying party may,
within a reasonable time, request preparation of the appropriate
declaration of disclosure or further particularity.

(b) If the noncomplying party fails to comply with a request
under subdivision (a), the complying party may do one or more
of the following:

(1) File a motion to compel a further response.

(2) File a motion for an order preventing the noncomplying
party from presenting evidence on issues that should have been
covered in the declaration of disclosure.

(3) File a motion showing good cause for the court to grant the
complying party’s voluntary waiver of receipt of the noncomplying
party’s preliminary declaration of disclosure pursuant to Section
2104 or final declaration of disclosure pursuant to Section 2105.
The voluntary waiver does not affect the rights enumerated in
subdivision (d).

(c) If a party fails to comply with any provision of this chapter,
the court shall, in addition to any other remedy provided by law,
impose money sanctions against the noncomplying party. Sanctions
shall be in an amount sufficient to deter repetition of the conduct
or comparable conduct, and shall include reasonable attorney’s
fees, costs incurred, or both, unless the court finds that the
noncomplying party acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.

(d) Except as otherwise provided in this subdivision, if a court
enters a judgment when the parties have failed to comply with all
disclosure requirements of this chapter, the court shall set aside
the judgment. The failure to comply with the disclosure
requirements does not constitute harmless error. If the court granted
the complying party’s voluntary waiver of receipt of the
noncomplying party’s preliminary declaration of disclosure
pursuant to paragraph (3) of subdivision (b), the court shall set
aside the judgment only at the request of the complying party,
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 the waiver of the
final declaration of disclosure, or in the current income and expense
statement.

(e) Upon the motion to set aside judgment, the court may order
the parties to provide the preliminary and final declarations of
disclosure that were exchanged between them. Absent a court order
to the contrary, the disclosure declarations shall not be filed with
the court and shall be returned to the parties.

SEC. 4.  

Section 2110 of the Family Code is amended to read:

2110.  

In the case of a default judgment, the petitioner may
waive the final declaration of disclosure requirements provided in
this chapter, and shall not be required to serve a final declaration
of disclosure on the respondent nor receive a final declaration of
disclosure from the respondent. However, a preliminary declaration
of disclosure by the petitioner is begin delete required. end delete begin insert required unless the
petitioner served the summons and petition by publication or
posting pursuant to court order and the respondent has defaulted. end insert