BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  June 16, 2015 


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          SB  
          340 (Anderson) - As Introduced February 23, 2015


                                  Proposed Consent

          SENATE VOTE:  34-0


          SUBJECT:  Dissolution: disclosure


          KEY ISSUE:  TO BETTER PROTECT CONFIDENTIAL FINANCIAL  
          INFORMATION, SHOULD A PETITIONER IN A DISSOLUTION PROCEEDING NO  
          LONGER BE REQUIRED TO SERVE HIS OR HER ASSET DISCLOSURE  
          DECLARATION ON A BAD ADDRESS FOR A RESPONDENT WHO HAS BEEN  
          SERVED BY PUBLICATION OR POSTING BUT DEFAULTED IN THE ACTION?


                                      SYNOPSIS

          As part of a dissolution or legal separation, spouses must  
          disclosure to each other detailed information about any of their  
          assets in which the community may have an interest and all debts  
          for which the community may be liable.  To accomplish this, the  
          parties are required to serve each other with preliminary and  
          final disclosure declarations listing the parties' assets and  
          liabilities.  The final declarations can be waived in certain  
          situations and if the respondent defaults, his or her disclosure  
          declarations can be waived, but the petitioner's preliminary  








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          disclosure declaration is currently required in all cases.  This  
          non-controversial bill, sponsored by the Family Law Section of  
          the State Bar, seeks to protect the parties' privacy by creating  
          a very narrow exception to the mandatory financial disclosure  
          rules in cases where the petitioner is unable to personally  
          serve the respondent and the court permits service by  
          publication (in a newspaper), or posting (in a location  
          reasonably thought to notify the respondent), and the respondent  
          defaults in the action.  In this limited instance, this bill  
          would allow the petitioner to not prepare and serve a  
          preliminary disclosure declaration on a respondent who cannot be  
          located.  If the respondent appears in the action, however, the  
          petitioner would be required to serve the disclosure declaration  
          within 30 days.  There is no reported opposition to this  
          measure.

          SUMMARY:  Relieves a petitioner in a dissolution or legal  
          separation proceeding of the requirement to serve a preliminary  
          disclosure declaration on a respondent who was served by  
          publication or by posting and who has defaulted in the action.   
          Specifically, this bill:  


          1)Provides that a preliminary declaration of disclosure is not  
            required by a petitioner in a dissolution or legal separation  
            proceeding if: a) the petitioner served the summons and  
            petition by publication or posting pursuant to a court order,  
            and b) 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.


          

          EXISTING LAW:    








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           1)In order to provide full and accurate disclosure of all assets  
            and liabilities in which one or both parties may have an  
            interest, requires each party to a dissolution or legal  
            separation proceeding to serve the other party with a  
            preliminary declaration of disclosure and a final declaration  
            of disclosure, as provided.  (Family Code Section 2103.   
            Unless stated otherwise, all further statutory references are  
            to that code.)

          2)In a dissolution proceeding, 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.  Also requires  
            that the parties provide each other with a completed income  
            and expense declaration.  (Section 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.  (Section 2106.)

          4)Allows the petitioner, in the case of a default judgment, to  
            waive the final declaration of disclosure requirements.   
            (Section 2110.)

          5)Allows the court to permit service by publication if the court  
            determines that the party cannot, with reasonable diligence,  
            otherwise be served.  (Code of Civil Procedure Section  
            415.50.)  

          6)Where service cannot otherwise be accomplished, allows the  
            court to permit service in a manner which is reasonably  
            calculated to give actual notice to the party being served.   








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            Provides that the service by posting is only permitted if the  
            petitioner is eligible for a waiver of court fees.  (Code of  
            Civil Procedure Section 413.30; California Rules of Court,  
            Rule 5.72.)  

          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.

          COMMENTS:  Divorcing spouses are required to serve each other  
          with preliminary and final disclosure declarations listing their  
          assets and liabilities.  This non-controversial bill, sponsored  
          by the Family Law Section of the State Bar, seeks to protect the  
          parties' privacy by creating a very narrow exception to the  
          mandatory financial disclosure rules in cases where the  
          petitioner has served the petition by publication or posting and  
          the respondent has defaulted in the action.  In these limited  
          instances, the petitioner would not be required to serve a  
          preliminary disclosure declaration.  Writes the author: 

              The court can approve service by publication or posting in  
              cases where 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, it can reasonably be assumed that  
              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.  Additionally, the mandatory disclosures  
              have to be served to respondent's last known address, which  
              means that petitioner's sensitive and private financial  
              information will most likely fall into the hands of unknown  
              persons who may abuse it.  This proposal would change the  
              law to allow a very narrow exception to the financial  
              disclosure rules in cases where service of Summons and  
              Petition was by publication or posting and the respondent  
              defaults.  If respondent answers prior to entry of default,  
              this bill would require petitioner to serve the mandatory  
              disclosures within 30 days of when response was filed.









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          Disclosure Declarations Designed to Provide Both Spouses With  
          Knowledge of Their Community's Assets and Liabilities.  As part  
          of a dissolution or legal separation, spouses must, until assets  
          and liabilities have been divided, make full disclosure to each  
          other of all information about 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.  To accomplish this, the parties are required  
          to serve each other with preliminary disclosure declarations,  
          listing the parties' assets and liabilities and stating the  
          percentage of ownership in each item not solely owned by one or  
          the other party.  The disclosure declarations are designed to  
          ensure that both parties understand their assets and their debts  
          when determining how to divide the community estate.   
          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, or 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.  

          Serving the Summons and Petition and Disclosure Declarations are  
          Difficult When One Party Cannot be Located or Otherwise Provided  
          with Notice and Required Legal Documents.  When a person files  
          for divorce, the law requires the petitioning spouse to serve  
          notice of the summons and the petition for divorce on the other  
          spouse.  Each party is also, as discussed above, required to  
          provide preliminary financial disclosures to the other party.   
          In cases where the whereabouts of both spouses are known,  
          service of both the summons and petition and the disclosure  
          declaration is relatively straightforward and can be  
          accomplished in a number of ways, including by in person  
          service, or service by mail.  (See Code Civil Procedure Sections  
          415.10 et seq.) 

          However, if the location of the responding spouse is unknown,  
          notice and service become more problematic.  In these cases, the  








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          court may, if it determines that the respondent cannot, with  
          reasonable diligence, be served, allow the petitioning spouse to  
          provide notice through alternative means, including notice by  
          publication.  Notice by publication requires the petitioner to  
          publish, for a specified period of time, the summons in a  
          newspaper "most likely to give notice to the party served."   
          (Code Civil Procedure Section 415.50.)  Where no statutory  
          prescribed method will work to provide notice, the court may  
          allow a party to serve in another method, as directed by the  
          court, "which is reasonably calculated to give actual notice to  
          the party to be served."  (Code of Civil Procedure Section  
          413.30.)  One of the options under this service alternative of  
          last resort is service by posting.  Service by posting is  
          accomplished by posting the documents in a location where the  
          respondent is most likely to receive actual notice of the  
          pending litigation.  By court rule, service by posting is only  
          permitted when the petitioner is eligible for a waiver of court  
          fees, likely because the cost of service by publication can be  
          prohibitive to parties receiving fee waivers.  (Rule of Court  
          5.72.)

          The requirement of financial disclosure, however, is not so  
          easily solved when the other spouse cannot be located and  
          served.  Because the Family Code does not specify how financial  
          disclosures must be completed, there are inconsistencies in  
          practice.  For example, Santa Clara County has a local rule  
          which allows a petitioner, in the case of publication, to send  
          his or her preliminary financial disclosures to the respondent  
          in care of the court clerk.  (Superior Court Santa Clara County,  
          Local Family Rules, Rule 1(J)(3).)  Alternatively, the  
          instructions on the Judicial Council form created for serving  
          the petition by publication or posting indicate that any  
          documents posted must be mailed to the last known address, which  
          could mean that the disclosure declaration must also be posted  
          and mailed.  (Judicial Council Form FL-982.)  However, none of  
          these solutions is particularly satisfactory because the  
          disclosures contain personal financial information (e.g., tax  
          returns, as well as bank and credit card account numbers and  
          balances) and mailing to a respondent's last known address makes  








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          it possible that a third party could obtain the petitioner's  
          sensitive information.

          The Family Law Section of the State Bar explains that in "the  
          vast majority of cases where service was accomplished by  
          publication or posting, [r]espondents default in the case,  
          meaning they never appear or participate in the case.  Preparing  
          the financial disclosures is quite time consuming, and they  
          often contain personal financial information, like bank account  
          and credit card account numbers and balances.  Requiring a  
          spouse to complete these forms when the other side will never  
          see them is an unnecessary expenditure of time and resources."   
          Moreover, since the court does not receive or independently  
          evaluate the disclosure declaration to determine the disposition  
          of the case, their preparation and service may be of no value to  
          anyone, and could potentially cause harm if the confidential  
          financial information falls into the wrong hands. 

          This Bill Creates a Limited Exception to Disclosure When the  
          Respondent Cannot be Located and Fails to Participate in the  
          Proceeding.  This bill exempts a person seeking a divorce, who  
          cannot locate his or her spouse for purpose of service of  
          process, from the obligation of serving preliminary financial  
          disclosures on the missing spouse if the court has approved  
          notice by publication or posting.  However, this bill does not  
          provide a blanket exemption to providing disclosure declarations  
          if service by publication or posting is used.  If the respondent  
          does, in fact, respond to the notice by publication or posting,  
          the petitioner is required to serve preliminary declarations  
          upon the respondent within 30 days of that response, and the  
          respondent must make those same disclosures within 60 days.   
          Accordingly, the only difference between the requirements under  
          existing law and those set forth under this bill are that a  
          petitioner would not be required, in the rare situation that he  
          or she gave notice by publication or posting, to send financial  
          information to an address where the respondent no longer lives.   
          And, as a result, this bill will save petitioners the time and  
          expense of preparing preliminary disclosures and protect against  
          the possibility that sensitive financial information will fall  








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          into the hands of third parties. 

          Pending Related Legislation:  AB 1519 (Judiciary), among other  
          things, requires that the timeframe for exchange of the  
          preliminary disclosure declaration in dissolution cases also  
          applies to legal separation cases - within 60 days of the filing  
          of the petition or the response.  AB 1519 passed the Assembly  
          and is concurrently awaiting hearing in the Senate Judiciary  
          Committee.

          REGISTERED SUPPORT / OPPOSITION:




          Support


          Family Law Section of the State Bar (sponsor)




          Opposition


          None on file




          Analysis Prepared by:Leora Gershenzon / JUD. / (916)  
          319-2334














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