Financial disclosure is required to obtain a divorce or termination of domestic partnership (DP) in California whether by litigation, mediation or a collaborative process. It is required whether you do your divorce/termination of DP on your own or with an attorney or a mediator.
Can disclosure be waived?
Financial disclosure has two parts: preliminary declaration of disclosure (PDD) and final declaration of disclosure (FDD). PDD cannot be waived unless in cases of a true default or by a court order. FDD, on the other hand, can be waived by agreement of the parties.
What is PDD?
The law imposes deadlines by which PDD must be completed. Petitioner must serve his/her preliminary disclosure within 60 days of filing of the petition (Fam. Code Section 2104(f)) and Respondent must serve his/her within 60 days of filing of the response.
There are four forms that California law requires each party to complete:
1) Income and Expense Declaration (FL-150)
2) Schedule of Assets and Debts (FL-142)
3) Declaration of Disclosure (FL-140)
4) Declaration Regarding Service of Declaration of Disclosure and Income and Expense Declaration (FL-141)
The numbers following “FL” correspond to judicial counsel forms to be used for financial disclosure. The forms can be obtained on the court’s website.
What is each form about?
Income and Expense Declaration contains a statement of income from all sources, including business and investment, as well as all expenses. You must attach the last two months of pay stubs, W2 statement, or other proof of income. The form helps the parties or court calculate child and spousal support, as well as determine the need and ability to pay attorney fees.
Schedule of Assets and Debts lists all of your assets, whether community property or separate property (acquired during or before marriage or during marriage for separate funds) and all of your debts. The form is very specific about what needs to be attached to the form. Each section asks for supporting documents. Most parties use statements from their date of separation. The form also has a column to designate each asset and each debt as either community or separate. If you are not sure or cannot state at the outset of your case, the column can be left blank.
Declaration of Disclosure asks that you answer questions about any business opportunities that the marriage/dp had up to the date of separation and about your method of arriving at values for your assets. The form also requires that you attach last 2 years of your income tax returns.
Declaration Regarding Service of Declaration of Disclosure and Income and Expense Declaration is your proof of service for having the PDD served on the other party. This is the ONLY form that is filed with the court if your divorce or termination of domestic partnership is amicable. If one party files a Request for Order and asks for financial relief, then the court requires a filing of the Income and Expense Declaration. If there is trial, most parties use their disclosure forms with their attachments as evidence and thus submit them into evidence.
Financial Disclosure is nothing more that preparing a summary of your financial life just like you would for taxes. It forces you to take an honest look at all your sources of income, expenses, assets and debts. Yet parties struggle with disclosure for various reasons.
If it is so easy, why do so many people struggle with it?
Some spouses simply do not know their marital financial information because they were not in charge of managing their finances. The law requires that spouse who is in charge of managing the couple’s finances provides full disclosure. If disclosure is incomplete, there are law-imposed penalties including assignment of the non-disclosed asset to the other spouse. Judgments can be set-aside and sanctions can be ordered against the non-disclosing spouse. However, if you are the spouse that never handled finances, divorce gives you an opportunity to ask yourself ‘why.’ Perhaps you are stuck in a victim mode or a child mode or you delegated the responsibility because you did not care enough about the money. Divorce gives you an opportunity to get to know yourself and make a decision to change.
Some people postpone disclosure because they simply are too afraid to face their finances. Often the marriage/domestic partnership fell apart because of the finances. People, in general, do not want to face the music. It sometimes was a direct or indirect cause of the break-up of the relationship, so the tendency to avoid finances intensifies. However, if you avoid looking at your finances during the beginning stages of your divorce, you are cutting yourself short on the possibility of a quick and amicable settlement. More importantly, you are keeping yourself stuck in the old mental pattern so that you will most likely repeat it in your next relationship.
How to empower yourself through disclosure?
Looking honestly at your finances lets you create a budget for your post-separation life and compare it with your marital lifestyle, which then helps you ascertain the need for spousal support. You have to look at your income and be realistic with your expenses. Most people do not ever look at their pay stub deductions, 401(k) contributions, or even investment accounts. You can use your divorce to let go of the fear of your money and truly go real. Getting real with your money creates authentic power. Shedding light on an area of your life from which you are running away, releases fears, insecurities; the unknown becomes known. The more you know your money, the better it works for you. If you do not take care of your money, it does not take care of you. Getting real with your financial situation allows you to get out of your victim mentality. If you look at yourself as a victim, life will give you situations that will support that view. Your next relationship will have the same issues because of your refusal to transform. That’s why divorce in general is such a wonderful (albeit painful) opportunity to get to know yourself, to let go of old patterns that no longer serve you (or that never served you), and to enter into a more positive stream of life.
Can you empower yourself through disclosure if you are the one “in power?”
If you are the so-called “in-spouse” who managed the money during the marriage or domestic partnership, the sooner you provide the financial information in a format that your ex-spouse can easily understand it, the sooner you can reach a settlement on support and division of assets.
The “in-spouse” may have been less than honest about the finances during the marriage. Disclosure is the last opportunity to fully disclose so that you can free yourself of the negative patterns. It works especially well in mediation where spouses have the opportunity to discuss their motivations, fears, needs etc. without falling back into the patterns developed during the marriage/domestic partnership. In litigation, a good attorney should be able to explain to you the ramifications of non-disclosure.
It is draining (mentally, emotionally, and physically) to hide money, spend it secretly, earn it in a less then honest way. How good can your next relationship be if you perpetuate such negative mental patterns? Can you be happy? Can you have authentic power? Unless you transform negative approaches to finances and disclosure, you may risk getting stuck in a denial that what you are creating is good for you or gives you real power.
In litigation, the sooner disclosure is completed and the more honest it is, the quicker a settlement may come about. If parties are reluctant to disclose, they prolong the process and increase their attorney fees.
In mediation, if parties are unwilling to make a full and honest disclosure, mediation should be stopped. Mediation can only work if there is at least willingness to discuss finances openly and to help each other understand respective approaches/view of money. Money means difference things to different people. Your fears and motivations may not be the same as those of your spouse. Clarifying interests is the key to creating a satisfying agreement.
Disclosure can be a great vehicle of empowerment during a divorce/termination of domestic partnership. It can help both parties become more authentic with themselves and each other for a better settlement and post-divorce life.