This is a question that many people ask. There is no one specific answer — though the court funding crisis might be one reason and the number of disputes in a contentious case might be another.
But one of the biggest roadblocks to either a settlement or trial is the failure to expeditiously do a Declaration of Disclosure (“DOD”). In California divorce cases, a declaration of disclosure — a compilation of forms that lists a person’s assets and debts and income — is mandatory. In fact, the DOD is required of both sides. In fact –and here is the catch– the DOD is required even if the parties agree on all of the issues.
The DOD requires parties to a divorce to state the balances on their credit cards, their mortgages, and their cars; to state how much their homes and cars are worth; to provide current values for retirement plans and other assets, like bank accounts; and to attach paystubs, w-2 forms, and, if applicable, profit and loss statements and 1099 forms. Attached to the preliminary DOD must be all tax returns filed by the person filling out the paperwork within two years of giving the DOD to the other side. Even if the parties have been married a short time, the DOD still has to be completed — even if”zeros” are put down in most of the spaces designed for answers.
In the old days, doing a DOD was probably a big nuisance, and it still isn’t a lot of fun now. But most balances and even paystubs can be obtained online, and as for the value of certain assets — such as a home or a car — California law says that, with respect to a preliminary DOD, you are not required to give a specific number as an answer. Saying “unknown” may be enough.
As referenced above, a DOD can be either a “preliminary” DOD or a “final” DOD. Technically, California law says that you have to do both. You’re supposed to do your preliminary DOD within 60 days after the case begins. The final DOD is technically due 45 days before the case is first set for trial or at the time you enter a settlement that resolves the case.
However, the parties may agree to “waive” or not do a final DOD. But a person who wants a divorce has to do the preliminary DOD. And the DODs are important. If something is left out of a DOD, or if the person filling out the DOD simply lies, the court can later set aside the judgment.
On the other hand, a person who opposes the divorce cannot stop the process by refusing to do a preliminary DOD. The court will grant the divorce if the person who files for divorce does a preliminary DOD (even if the other side does not do one), if the uncooperative side fails to file any paperwork within 30 days after being served with the divorce papers; there is no written settlement; and a properly completed “default package” is submitted to the court.
But the talking point here is that if we’re dealing with a regular divorce, where each side is participating in the process, each side must do a preliminary DOD if the case is to settle out of court. And each party must do a preliminary DOD if the case goes to a contested trial.
And that’s the most important disclosure about Declarations of Disclosure.
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