BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 340|
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THIRD READING
Bill No: SB 340
Author: Anderson (R)
Introduced:2/23/15
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 5/5/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
SUBJECT: Dissolution: disclosure
SOURCE: Executive Committee of the Family Law Section of the
State Bar
DIGEST: This bill provides 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. This
bill requires, 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. This bill makes other related, conforming
changes.
ANALYSIS:
Existing law:
1)Provides that parties to a dissolution or legal separation
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Page 2
must serve on the other party a preliminary declaration of
disclosure of all assets and liabilities in which one or both
parties may have an interest. (Fam. Code Sec. 2103.)
2)Provides that the preliminary declaration of disclosure of
assets must be served concurrently or within 60 days service
of the petition for dissolution of marriage or legal
separation of the parties, and must be signed under penalty of
perjury. (Fam. Code Sec. 2104.)
3)Prohibits the court from entering a judgment regarding the
parties' property rights in a dissolution proceeding unless
each party has submitted a final disclosure declaration and a
current income and expense declaration. (Fam. Code Sec.
2106.)
4)Allows the petitioner, in the case of a default judgment, to
waive the final declaration of disclosure requirements. (Fam.
Code Sec. 2110.)
This bill:
1)Provides 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 a court
order, and the respondent has defaulted.
2)Provides that when a petitioner serves the summons and
petition by publication or posting and the respondent files a
response prior to a default judgment being entered, the
petitioner must serve the respondent the preliminary
declaration of disclosure within 30 days of the response being
filed.
Background
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Page 3
The Elkins Family Law Task Force (Task Force), appointed in 2008
for the purpose of conducting a comprehensive review of family
law proceedings, produced a final report which contains 21 main
recommendations. (Elkins Family Law Task Force: Final Report and
Recommendations, (April 2010) Judicial Council
Page 4
However, if the location of the responding spouse is unknown,
notice and service become more problematic. In these cases, the
court may allow the petitioning spouse to give "notice by
publication" and publish the relevant information in a newspaper
"most likely to give notice to the party served." (Code Civ.
Proc. Sec. 415.50.) The requirement of financial disclosure,
however, is not so easily solved when the other spouse's address
is unknown. Because the Family Code does not specify how
financial disclosures must be completed, there are
inconsistencies in practice. Some counties have developed
systems through local rule of court, some rely on general
service provisions under the Code of Civil Procedure, and the
Judicial Council has created a form which requires that
disclosures are sent to a respondent's last known address.
Accordingly, this bill seeks to better implement the Task Force
recommendation for more statewide uniformity in family law
procedures. By creating a very narrow exception to the
mandatory financial disclosure rules in cases where the
petitioner served the petition by publication or posting and the
respondent has defaulted.
Comments
The author writes:
The court can approve service by publication or posting in
cases where the respondent cannot be served with reasonable
diligence in another manner authorized by statute (Code of
Civil Procedure Section 415.50). In these cases, if the
respondent defaults, and most do, it can reasonably be
assumed the respondent will not get actual notice of the
disclosures, making petitioner's efforts in completing,
filing and serving the required forms an unnecessary
expenditure of time and resources. These disclosures, which
often contain personal financial information, like bank
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account and credit card account numbers and balances, must
be mailed to the last known address, so there is the
possibility a third party may come into possession of the
Petitioner's sensitive financial information. These
disclosures are not filed with the court, so eliminating the
requirement to serve a defaulting spouse with these forms,
when service is by publication or posting, will not deprive
the court of needed information.
Prior Legislation
AB 1406 (Committee on Judiciary, Chapter 107, Statutes of 2012)
set a 60 day time limit for the preliminary declaration of
disclosure, as specified, and required the preliminary
declaration of disclosure of assets to include all tax returns
filed by the declarant within the two years prior to the date
that the party served the declaration.
AB 939 (Committee on Judiciary, Chapter 352, Statutes of 2010)
made various changes to family law proceedings thereby
implementing a number of the legislative recommendations issued
by the Task Force.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified5/8/15)
Executive Committee of the Family Law Section of the State Bar
(source)
SB 340
Page 6
OPPOSITION: (Verified5/8/15)
None received
ARGUMENTS IN SUPPORT: The Executive Committee of the Family
Law Section of the State Bar, the sponsor of this bill, explains
that, "in the vast majority of cases where service was
accomplished by publication or posting, respondents default in
the case, meaning they never appear or participate in the case."
Thus, preparing the financial disclosures is arguably
unnecessary expenditure of time and resources because a
defaulting respondent will never see the disclosures and the
court does not evaluate them to determine the disposition of the
case."
Prepared by:Nichole Rapier / JUD. / (916) 651-4113
5/8/15 15:09:19
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