In divorce, the preliminary declaration of disclosure and the final declaration of disclosure are required of divorcing couples so that the petitioner and the respondent can accurately set forth the assets and debts of the marriage. If one spouse is concerned about an equitable division, that means that spouse, whether it’s the husband or the wife, does not have confidence that the other spouse is being truthful, because there are two different ways to approach a declaration of disclosure.
What advice is there for people seeking an equitable division in divorce?
When you look at it, do you have confidence that your spouse has disclosed accurately all your assets and debts. The disputes arise when someone receives the other spouse’s declaration of disclosure, whether it’s preliminary or final, and looks at it and says, “Well, I think that this asset is worth more” or, “I think we have other debt out there” or, “There’s a bank account I know is in Wells Fargo but it’s not disclosed by the other spouse”.
When you don’t have confidence in receiving the other person’s declaration of disclosure, perhaps you propound discovery – meaning you’ll send form interrogatories or special interrogatories or demand for production of documents, or perhaps your lawyer will send out subpoenas to usually banks or other financial institutions to basically do some discovery to see if your spouse is telling the truth.
Another way to go about an equitable division is hire a forensic accountant and perhaps that forensic accountant has other ideas or can create a marital balance sheet, which means you know you can put different values as to properties and debts on the marital balance sheet and make a proposed division of community assets and debts.
You have to start with the declarations of disclosure and decide whether you have faith in your spouse’s disclosure, because really you have a fiduciary duty to your spouse. That means that when you fill out your declarations of disclosure, you need to be truthful. Whether you’re a petitioner or a respondent, you have to be truthful and you have to attach bank statements and deeds and credit card statements, and things like that.
If for some reason you don’t have confidence and you are worried that your spouse is not disclosing all the assets and debts, you can engage in discovery. You can file a motion with the court to have a forensic accountant appointed. There are certain steps you can take, but you should talk to your lawyer. A forensic accountant helps the person that’s being represented make sure they’re getting an equitable division.
Ann A. Thomson is a family lawyer practicing in Seal Beach, California. She serves clients throughout the Orange County and Southern California area.