I just finished defending a client in his family law case in which the opposing party who is represented by an attorney filed a contempt affidavit for alleging that my client filed a false I&E. There were 10 counts of criminal contempt filed and I was able to successfully defend him by requesting dismissal at the outset of the trial.
The court affirmed my arguments for both the lack of standing of a private party filing a criminal case and agreed that the affidavit was defective. But notwithstanding that, my client had to undergo months of discovery, pretrial motions, substantial legal fees and eventually the trial to have the case dismissed in its entirety.
What is an income and expense declarations? These I&E are used for several reasons: establishing/enforcing child support, spousal support, attorney fees, sanctions. California law recognizes the critical importance of full and accurate disclosure of assets, liabilities and financial circumstances at the early stages of a family law action.
To promote this goal and with very few exception, the courts require the exchange and submission of financial disclosure documents (I&E, preliminary and final declaration of disclosures) in all dissolution, legal separation and nullity actions.
The definition of assets includes, but not limited to, any real or personal property of any nature, whether tangible or intangible or whether it currently exist or contingent. Earnings and accumulations are income from whatever source derived. Expenses include but are not limited to, all personal living expenses. For self-employed individuals, a forensic accounting would be advisable in calculating “non-taxable income.
The extensive disclosures (preliminary and final) required by the statutes could reveal sensitive information and, if filed with the court, would become a public record. Because of the threat of public access, the statutory requirements limit the service to each party but the disclosure declarations are not filed with the court. Each party, however, must file a proof of service of each of the required declarations and any amendments thereto.
One of my arguments –which in my belief, was one of the most compelling arguments for the dismissal by the court is that no California court has ever held an individual in contempt for filing a false I&E. However, the court has inherent jurisdiction and a party may request sanctions under the Family Code for monetary sanctions in an amount “sufficient to deter repetition of the conduct or comparable conduct.”
The lesson to be learned from this article is that declarations filed with the court in your family law case are all signed under penalty of perjury. While the crime of perjury under Penal Code Section 118 can only be filed by prosecutorial agencies, the court has power to “punish” individuals who knowingly file erroneous financial declarations.
Any questions, feel free to contact my office at 310-601-7144 or email me at [email protected].