Bill Text: CA AB459 | 2009-2010 | Regular Session | Chaptered
Bill Title: Dissolution: disclosure.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2009-08-06 - Chaptered by Secretary of State - Chapter 110, Statutes of 2009. [AB459 Detail]
Download: California-2009-AB459-Chaptered.html
BILL NUMBER: AB 459 CHAPTERED
BILL TEXT
CHAPTER 110
FILED WITH SECRETARY OF STATE AUGUST 6, 2009
APPROVED BY GOVERNOR AUGUST 5, 2009
PASSED THE SENATE JUNE 22, 2009
PASSED THE ASSEMBLY JUNE 25, 2009
AMENDED IN SENATE JUNE 15, 2009
AMENDED IN ASSEMBLY APRIL 13, 2009
INTRODUCED BY Assembly Member Bonnie Lowenthal
FEBRUARY 24, 2009
An act to amend Sections 2104, 2106, and 2107 of the Family Code,
relating to dissolution.
LEGISLATIVE COUNSEL'S DIGEST
AB 459, Bonnie Lowenthal. Dissolution: disclosure.
Existing law requires each party to a proceeding for dissolution
of marriage or legal separation of the parties to serve on the other
party a preliminary declaration of disclosure of assets, as
specified, and a final declaration of disclosure, as specified,
unless service of the final disclosure is waived. Existing law
requires each party to serve a preliminary declaration of disclosure
after or concurrently with service of the petition for dissolution or
nullity of marriage, or legal separation of the parties. If a party
fails to serve a preliminary or final declaration of disclosure, as
specified, or fails to provide information required in those
declarations with sufficient particularity, if the other party has
served the respective declaration of disclosure, and if the
noncomplying party also fails to comply with a request for the
preparation of the appropriate declaration of disclosure or further
particularity, existing law authorizes the complying party to file a
motion to compel a further response or for an order preventing the
noncomplying party from presenting evidence on issues that should
have been covered in the declaration of disclosure.
Existing law generally prohibits entry of judgment with respect to
the parties' property rights unless each party, or the attorney for
that party, has executed and served a copy of the final declaration
of disclosure and current income and expense declaration. Existing
law requires a court to set aside a judgment when the parties have
failed to comply with all disclosure requirements, as specified.
This bill would add, as an additional option that a complying
party may pursue if the noncomplying party fails to comply with the
request described above, the option to file a motion showing good
cause to grant the complying party's voluntary waiver of receipt of
the noncomplying party's disclosure, as specified. If that motion is
granted, the bill would require the court to set aside a judgment
only at the request of the complying party, unless the motion is
based on actual fraud or perjury, as specified. The bill would make
related and conforming changes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2104 of the Family Code is amended to read:
2104. (a) Except by court order for good cause, as provided in
Section 2107, after or concurrently with service of the petition for
dissolution or nullity of marriage or legal separation of the
parties, 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.
(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 where 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.
SEC. 2. Section 2106 of the Family Code is amended to read:
2106. Except as provided in subdivision (d) of Section 2105,
Section 2110, or absent good cause as provided in Section 2107, no
judgment shall be entered with respect to the parties' property
rights without each party, or the attorney for that party in this
matter, having executed and served a copy of the final declaration of
disclosure and current income and expense declaration. Each party,
or his or her attorney, shall execute and file with the court a
declaration signed under penalty of perjury stating that service of
the final declaration of disclosure and current income and expense
declaration was made on the other party or that service of the final
declaration of disclosure has been waived pursuant to subdivision (d)
of Section 2105 or in Section 2110.
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 2104 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.
