"I DECLARE" - A MUST IN DIVORCE

By Irving H. Zaroff, JD LMFT and Dana Schutz, MA LMFT

Honesty doesn't always pay, but dishonesty always costs.
~Michael Josephson

There are four areas to address in most divorces: (i) a parenting plan and (ii) child support when there are children; (iii) division of the marital property; and (iv) spousal support. Three of these directly involve money - the fourth does so indirectly.

In light of the financial decisions needing to be made, California requires that the couple make full disclosure to each other on all sources of income, expenses, properties and liabilities (California Family Code - 2100 et seq). To implement these requirements the law provides that a "full and accurate disclosure" of all assets and liabilities (whether community or separate), be served on the other party within sixty days of filing the Petition (or Response). In addition, each party must provide an Income and Expense Declaration within the same timeframe. The parties also must update each other if there is any material change in the information provided.

The purposes of these disclosures are (i) protecting and preserving the marital estate to avoid loss or misuse before it is distributed; (ii) to ensure fair and sufficient child and spousal support; and (iii) to achieve a division of the community assets and liabilities upon divorce (California Family Code - 2100). There is a common fear by one or both spouses that the other will be hiding information. That is why attorneys vigorously pursue discovery (one of the most expensive parts in divorce). In non-litigated divorces (i.e., mediation) the parties often voluntarily provide this information without investigation. They do it on trust. But, are there safeguards against being less than truthful?

Disclosures are provided under penalty of perjury. Failure to provide accurate and complete information could result in criminal penalties. Perhaps a bigger safeguard is that a settlement or judgment can be overturned if significant failures to disclose are later discovered. One of the most famous examples occurred when a wife won the lottery, didn't tell her husband, and filed for divorce. The husband learned of the lottery winnings after the divorce. In that case, the judge overturned the divorce agreement and awarded 100% of the lottery winnings to husband.

Remember: to be fair, you must be aware.



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