In California, both parties are required to complete and serve a Preliminary Declaration of Disclosure, which list each party’s assets, debts, income, and expenses. The Parties are also required to complete and serve a Final Declaration of Disclosure, but receipt of this disclosure can be waived by either party, unlike preliminary disclosures. These declarations are not filed, but proof of service of these disclosures must be filed with the Court. A paralegal in our office assists our clients in properly completing these forms.
- Schedule of Assets and Debts
- There are judicial council forms available for this purpose and the most widely used judicial council form is entitled Schedule of Assets and Debts. On the form, each party lists all the assets they have, indicating when the property was acquired, its approximate fair market value, and amount of any loan on the property if any. The valuation of the property is not required in Preliminary Declarations of Disclosure, but is required in the Final. The property that must be listed includes, but is not limited to the following:
- Real Estate
- Household Furniture, Furnishings, Appliances
- Jewelry, Antiques, Art, Coin Collections
- Vehicles, Boats, Trailers
- Savings Accounts,
- Checking Accounts
- Credit Union, Other Deposit Accounts
- Tax Refund
- Life Insurance With Cash Surrender Or Loan Value
- Stocks, Bonds, Secured Notes, Mutual Funds
- Retirement And Pensions
- Profit-Sharing, Annuities, IRAs, Deferred Compensation
- Accounts Receivable And Secured Notes
- Partnerships And Other Business Interests
Each party must also list debts such as student loans, tax debt, support arrearages, unsecured loans, credit cards, or other debt. In listing these debts, the party must indicate whether or not the debt is a community debt, how much is owe, and when the debt was incurred.
The parties are required to attach statements, title documents, or certificates where available and relevant.
The Schedule of Assets and Debts put the other side on notice of his or her position on whether certain property is community or separate property. Under California law, all property acquired during marriage is presumed to be community property, unless it was acquired by gift or inheritance. This presumption applies whether the property is real or personal, or if the property is in another state or country.
If one spouse claims that property purchased during marriage is separate property, that spouse bears the burden of proving that the property is not community property. One way in which a party may prove that the presumed community property is separate property is through the direct tracing method. For example, if one party purchased a couch using the money they had in their savings account before marriage, that spouse would need to show the withdrawal from the savings account that was used to purchase the couch. If that spouse combined that savings account with money he or she earned during marriage, it is now “comingled” and that spouse will have a more difficult time overcoming that presumption.
- Income and Expense Declaration
- Both parties are required to complete a judicial council form entitled Income and Expense Declaration. Examples of the information gathered by this form are:
- Employment information such as name, address, occupation, and compensation information
- Age and Education
- Tax filing information
- Income such as salary and wages, overtime, commissions or bonuses, disability, unemployment, investment, or self-employment
- Monthly expenses
- Child Support Information
- Tax Returns
- Both parties must serve the other party with tax returns filed within the last two years.
- Final Declarations of Disclosure
- A Final Declaration of Disclosure includes all of the same documents required by a preliminary declaration of disclosure, but it also requires the following:
- a statements of all material facts and information regarding valuation of all assets that are community property or in which the community has an interest
- A statement of all material facts and information regarding obligation for which the community is liable
- An accurate and complete written disclosure of any investment opportunity, business opportunity, or other income-producing opportunity presented since the date of separation that results from any investment, significant business, or other income-producing opportunity from the date of marriage to the date of separation.