Jamj2 said:
I reside in California. I signed my divorce papers last December, so the divorce should be final sometime in June. It was a "civil" divoce, we sperated our assets and went our separate ways. Recently, I discovered that not all information concerning assets was disclosed. Since I am in the middle of a divorce, can this new information still be addressed? What do I need to do? J2.
My response:
Since you didn't say what "kind" of assets, I can't tell you which form to use; however, depending on the type, you'll use one of the forms in the 1285 series, and title it "Amended" Income and Expense Declaration Re: (Type of Assets)
Family Code §§2100–2113 imposes a vast array of disclosure obligations on parties to dissolution proceedings. The statute expresses legislative intent to marshal, preserve, and protect community assets and liabilities that exist upon separation, to avoid dissipation of the community estate prior to distribution. Toward that end a "full and accurate disclosure of all assets and liabilities . . . must be made in the early stages of [dissolution proceedings] regardless of the characterization as community or separate . . ."
Moreover, there is a "continuing duty to update and augment that disclosure." [Fam C §2100(c)]
Specifically, there are three major provisions:
(a). Fiduciary obligations. The fiduciary obligations imposed by Fam C §721 are specifically made applicable, from the date of separation to the date of distribution of community assets and liabilities, to all activities that affect the property rights of the other party. [Fam C §2102] The list of activities includes, but is not limited to:
(1). Asset and liability disclosure. The disclosure of all assets and liabilities and all current earnings, accumulations, and expenses. [Fam C §2102]
(2). Investment opportunities. The written disclosure of all investment opportunities arising after separation that result from investment activity by either spouse prior to separation. The disclosure must be made in sufficient time to allow the other spouse to make an informed decision whether to participate in the investment opportunity. [Fam C §2102(b)] Family Code §2108 authorizes the court, on application of a party and on good cause, to order the liquidation of community assets to avoid unreasonable investment risks. Any gain from an undisclosed investment will be treated as an omitted asset under Fam C §2556, which permits the court, "in the interests of justice," to make an unequal division of the asset.
(3). Community business. The operation or management of a business in which the community may have an interest. [Fam C §2102(c)]
(b). Disclosure declarations. Each party is required to prepare and serve on the other party a "declaration of disclosure" near the beginning and the conclusion of the dissolution proceeding, as follows:
(1). Absent a contrary court order or stipulation of the parties, a "preliminary declaration of disclosure," identifying the declarant’s assets and liabilities, whether community or separate, must be served on the other party within 60 days of service of the dissolution petition. The declaration must be executed under penalty of perjury on Judicial Council Form 1292. [For Judicial Council Form 1292, see § 5:99] If not already provided, a current income and expense declaration on Judicial Council Form 1285.50 must be served with the preliminary declaration. [For Judicial Council Form 1285.50, see § 5:100] The preliminary declaration is not filed with the court unless so ordered. However, the parties must file proof of service of the preliminary declaration of disclosure with the court. [Fam C §2104]
(2). Before or at the time that the parties enter into an agreement resolving property or support issues or, in the event of trial, no later than 30 45 days before the first trial date is assigned, each party must file with the court and serve on the other party a "final declaration of disclosure," together with a current income and expense statement if one has not already been filed. The declaration is required to include "all material facts and information" regarding the characterization of all assets and liabilities, the valuation of community assets, the amounts of community obligations, and the earnings, accumulations and expenses of the party as set forth in the party’s income and expense declaration. [Fam C §2105]
(c). Sanctions, enforcement. The statute provides for various sanctions for failure of one or both parties to comply. If one party complies with the disclosure requirements, and the other fails to prepare and serve a declaration at all or fails to provide sufficient information, the complying party after requesting compliance can move to compel a further response and prevent the noncomplying party from presenting evidence on the issues omitted from the declaration. [Fam C §2107] Subdivision (c) of Fam C §2107 provides the court "shall, in addition to any other remedy provided by law, order the noncomplying party to pay the complying party any and all reasonable attorney fees, expert fees, and any other costs" occasioned by the failure to comply. Furthermore, the court must, in addition to any other remedy provided by law, order the noncomplying party to pay to the complying party any reasonable attorney 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. [Fam C §2107(c); for further discussion of attorney and other fees and costs, see FAMILY LAW LITIGATION: Attorney Fees and Costs Ch 10]
Failure of each party to file a final declaration renders any property settlement agreement unenforceable and precludes entry of judgment, unless the court finds denial of entry of judgment would unfairly prejudice a party who has complied with the disclosure requirement or would not serve the interests of justice. Each party must execute and file with the court a declaration signed under penalty of perjury stating that service of the final declaration of disclosure and a current income and expense declaration was made on the other party. Absent good cause, the court cannot enter judgment with respect to the parties’ property rights unless each party has executed and served a final declaration of disclosure and a current income and expense declaration. [Fam C §2106]
Perjury on the final declaration may be grounds for setting aside the judgment in whole or part under Fam C §2122(b). In the alternative, if the parties have waived service of a declaration of disclosure pursuant to Fam C §2105(c) or Fam C §2110, the parties must execute and file with the court a declaration signed under penalty of perjury stating that service of the final declaration of disclosure has been waived pursuant to Fam C §2105(c). [Fam C §2122(b)] In its order to set aside a judgment for failure to comply with the disclosure requirements, the court may limit the set aside to those portions of the judgment materially affected by the nondisclosure. [Fam C §2105(e)] This limitation also applies to set asides for failure to comply with disclosure requirements and waiver requirements for judgments entered prior to January 1, 1996. [Fam C §2105(f); see Fam C §2106 for waiver requirements; see § 14:11 for discussion of waiver requirements in default proceeding]
An invalid waiver of financial disclosure requirements renders an ensuing judgment and martial agreement subject to set aside. [In re Marriage of Fell (1997) 55 Cal.App.4th 1058, 64 Cal.Rptr.2d 522]
Family Code §2105 requires that not later than 45 days before the first assigned trial date each party must file a final declaration of disclosure. No judgment may be entered unless the final declaration of each party has been filed with the courtexecuted and served on the other party and until each party has executed and a declaration signed under penalty of perjury stating that service of the final declaration of disclosure, and a current income and expense declaration (a proof of service), was made on the other party.
Family Code §2556 provides that the court has continuing jurisdiction to award community assets or liabilities not previously adjudicated by a judgment in the proceedings. Family Code §2121 does not preclude a party from seeking such relief. [Fam C §2128(a)]
Note, however, that when a party has previously but unsuccessfully sought to set aside a judgment dividing community property based on fraud concerning the value or income potential of the property, the issues cannot be relitigated in an action to invoke the court’s continuing jurisdiction over omitted assets. The doctrine of res judicata bars relitigation of the fraud claim under a new theory that treats the allegedly misrepresented property as an omitted asset [In re Marriage of Mason (1996, 2nd Dist.) 46 Cal.App.4th 1025, 54 Cal.Rptr.2d 263] In Mason, the appellate court ordered the husband to pay attorney fees for pursuing such a theory.
Good luck to you.
IAAL
