When embarking on a family law case, a well-structured discovery plan often begins with the Preliminary Declaration of Disclosure (Judicial Council Form FL-140). This critical document, governed by Family Code §§2103–2104, sets the foundation for transparency and accountability regarding both parties' financial situations. Before diving into preparation, it’s essential for attorneys to gather as much information as possible from their clients about separate and community assets, liabilities, and income. Understanding what a client estimates as the income of their registered domestic partner or spouse can also provide valuable insights.

If the opposing party has already served their preliminary declaration, this disclosure can help fill in any gaps in your client's information. Unlike the final disclosure declaration, which must contain “all material facts and information” (Fam C §2105(a)), the preliminary declaration does not require estimated values of assets or obligations. However, it’s a common practice to include these estimates if available.

Service of the Declaration

Family Code requires that the preliminary declaration be served either concurrently with the petition for dissolution or legal separation, or within 60 days of filing, barring a court order for good cause (Fam C §2107). If the family law summons and petition were served via court-ordered posting or publication, special rules apply. The responding party must serve their preliminary declaration either concurrently with their response or within the same 60-day timeframe. Timelines can be extended by mutual agreement or court order.

It's crucial that the preliminary declaration includes all tax returns filed by the declarant within the two years preceding service (Fam C §2104(a)).

Compelling Production of the Declaration

If you find yourself up against a reluctant opposing party, compelling them to produce a satisfactory preliminary declaration can be a daunting and expensive task. The Family Code provides a mechanism for addressing a failure to serve this document through a motion to compel, which may include requests for evidence preclusion and monetary sanctions (Fam C §§2107(b)–(c)). Keep in mind, a judgment entered without compliance with disclosure requirements may be subject to being set aside (Fam C §2107(d)).

Practice Tip: Sometimes, even a court order coupled with monetary sanctions may not yield the desired results. To avoid lengthy motions to compel, consider seeking mandatory fee and cost sanctions under Fam C §2107(c) and document-inspection demands after formally requesting the preliminary declaration. If the opposing party remains unresponsive, file a motion to compel discovery (CCP §2031.310). If necessary, push for a motion to proceed without the preliminary declaration based on good cause, including a request for attorney fees and costs.

Final Declaration of Disclosure

Unlike its preliminary counterpart, the final Declaration of Disclosure must be exchanged by each party before settling property issues or support agreements, or no later than 45 days before trial (Fam C §2105(a)). While this exchange occurs late in the process and may not serve as an effective discovery tool, it compels parties to reflect on any material changes from their preliminary declarations. The final declaration must detail the characterization of assets and liabilities, valuation of community claims, and income/expense information.

In summary, a solid understanding of both the preliminary and final declarations of disclosure is vital for effectively navigating family law cases. By preparing thoroughly and being proactive, attorneys can help ensure that their clients’ interests are well-protected throughout the process.

At M.C. Law, P.C., we’re dedicated to guiding you through the complexities of family law, including the intricacies of disclosure requirements. Our experienced team is here to provide the support you need to navigate these challenging situations effectively