Financial Disclosures: Who Needs to Complete Them?
California law requires the “Petitioner” (ie. the first person to file the divorce papers) in every divorce case to send their STBX information and documents showing their financial situation, usually referred to as your “disclosures”. Think of it as the Court wanting to make sure that you have listed everything that could be part of the divorce agreement, even if you both already know what is at stake. We’ll set up these forms for you in Step Two (“Exchanging Information”). But, depending on whether you both complete these forms, the type of divorce that you are in might change. As we’ve discussed before, there are three different kinds of uncontested divorce: default with agreement, “true” default, and uncontested divorce. There are different rules for disclosures depending on which kind you choose.
In an uncontested divorce, both parties file paperwork with the court (a “Petition” and “Response”, respectively) – this is called an appearance. In an uncontested divorce, both parties complete their own disclosures.
However, in a default with agreement and a “true” default, only the person who files is legally required to provide financial disclosures.*
In a default with agreement (our most common type of divorce), the Petitioner needs to complete their financial disclosures and give them to the other party. Because the party who does not file (the “Respondent”) doesn’t actually file any documents with the court, they often skip this step. However, most attorneys suggest that both sides complete and exchange their own disclosures.
No matter what method of divorce you end up using, the Petitioner always has to complete their financial disclosures; there is no way around this and the judge will reject your final Judgment if you have not completed this step.
* While State law does not require both parties to complete disclosures, certain counties do. You can contact us to find out whether your county as any special rules.
Am I taking a risk by not getting my STBX’s financial disclosures?
Maybe. California is a community property state, meaning that anything a spouse gets during the marriage is 50% yours and 50% theirs. This means that you might be entitled to some of your STBX’s assets even if you haven’t considered it to be yours, or if you don’t know it exists at all. To take a very extreme example, if someone wins the powerball and divorces their spouse a week later, the spouse is still legally entitled to 50% of those winnings. If your STBX doesn’t tell you he or she won the lottery and you make an agreement to each keep whatever bank accounts are in your name, you could be walking away from a huge sum of money. Whether or not you and your spouse believe this is fair, it is under the law, so you have the same rights to know.
Likewise, your STBX puts him or herself at risk by not disclosing their finances. If they don’t disclose an asset that’s discovered later, you can file a motion with the court, and the court can actually order them to give you 100% of it, even if it’s partially theirs.
In either case, if your divorce is finalized with the court and a problem comes up later, you would need to file a formal motion asking the court to “set-aside” your judgment so that property can be disposed of. It’s an expensive, complicated, and inconvenient process, and usually will require hiring an attorney to assist you. By exchanging all of your financial information up front, you avoid the possibility (however slim) of a problem coming up later.
Can my STBX use Separate.Us to do their disclosures?
Yes; however, your STBX will need to sign up for their own account and pay for a separate package.