There are a lot of differences between regular civil lawsuits and marital dissolution proceedings. One of those differences is discovery. “Discovery” is the legal process where the parties obtain information from one another or third parties. Discovery occurs before trial and can start as soon as 10 days after your spouse is served the Petition.
What makes discovery different in California divorces, starts with the fiduciary duty both spouses owe toward each other. Family Code section 721(b) directs that spouses have a duty of the highest good faith and fair dealing on each other and will not take any unfair advantage of the other. In normal litigation not everyone owes a fiduciary duty to the other party. In California divorces, spouses always do. This means that from the outset, spouses have a duty to disclose all of their financial information to their spouse.
This is why California law requires parties in a divorce to exchange “Declarations of Disclosure.” Family Code section 2100 et seq. The Declarations of Disclosure are financial disclosures made under oath to the other party. They serve as the way spouses are to disclose the complete picture of each party’s finances. So, the spouse who has a ton of credit card debt without telling the other spouse must disclose those credit cards - even if the credit card is only in that spouse’s name. So, if there’s a bank account you’ve been keeping from your spouse needs to be disclosed. And, this requirement extends to separate property accounts and liabilities. The money you inherited but didn’t tell your spouse? Yes, that has to be disclosed as well, because spouses have a fiduciary duty to each other.
The Declarations of Disclosure include an Income and Expense Declaration and a Schedule of Assets and Debts. These are not filed (although the Income and Expense Declaration must be filed in other situations), but they are signed under oath stating you have served the other party the Schedule of Assets and Debts and the Income and Expense Declaration. Once filled out, it is very very important to look at what is disclosed and what may be missing. Both areas will be important for settlement negotiations and trial.
Two years income tax returns must also be exchanged, along with several statements regarding the liabilities, appraisals, and values of the community property.
And, the Declarations of Disclosure are not just served once. They are exchanged at the beginning of the case and near the end. The Declarations of Disclosure that are exchanged at the beginning of the case are called the Preliminary Declaration of Disclosure and the Final Declaration of Disclosure for those exchanged near the end. The Preliminary Declaration of Disclosure must be served by the Petitioner within 60 days of filing the Petition - 60 days of filing the Response for the Respondent. The Final Declaration of Disclosure can be waived, but not the Preliminary Declaration of Disclosure. It is important to consult with an experienced family law attorney before waiving the Final Declaration of Disclosures.
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