2012: What Are Your Statutory Disclosures In A San Diego Divorce Or Legal Separation?
In all divorces and legal separation cases in San Diego, there are mandatory disclosures. These disclosures in a legal separation or divorce case in San Diego must be complied with. The duty of spouses in a divorce or legal separation consist of the preliminary declarations of disclosure which include the income and expense declaration and the schedule of assets and debts. There is a fiduciary duty between husband and wife during marriage and this fiduciary duty in a divorce or legal separation can carry over into the divorce.
Except as provided in the San Diego Probate Code, a wife and husband in a legal separation or divorce in transactions between themselves are subject to the rules [generally] governing the fiduciary relationship which controls the actions of persons who occupy a confidential relationship with each other. The highest fair dealing and good faith is a duty imposed by this confidential relationship. Neither spouse in a legal separation or divorce are allowed to take unfair advantage of the other. These duties include, but are not limited to, the full disclosures and documents for the schedule of assets and debts and the income and expense declaration, providing each spouse [upon request] full and true information for any transactions which include community property, providing access to books for inspection and copying or all transactions for community property and accountings in full.
This requirement continues, with regards to community property division and maintenance of community property assets until the date of judgment. This duty includes, but is not limited to, a full disclosure to the other spouse of all material information and facts regarding the valuation, characterization and existence of all assets in which the community does or may have an interest and also applies equally for community property debts.
Normally, in the beginning of a legal separation or divorce, the preliminary declaration of disclosure will be filed and the proof of service filed with the Court as this is mandatory. In San Diego Superior Court, it is possible to waive the final declaration of disclosure but the preliminary declaration of disclosure is non able to be waived. There is a continuing duty, during the divorce or legal separation, to accurately and fully augment and update if any material changes to the disclosures previously made. This is required so that any settlement is done with a full and accurate knowledge of the asset and/or debt so an informed and intelligent analysis and decision can be made.
These disclosures need to be made for community property, separate property and quasi community property. These include corporations and partnerships as well as all business entities.
If you would like to discuss your fiduciary duties or your San Diego case, please feel free to contact us for a confidential consultation.