Discovery for child support modifications in California is the topic of this blog post.
This post will discuss a procedure for obtaining income and expense information from the other party before filing any request for order to modify or terminate child, family, or spousal support in California.
This procedure is not well known but is an excellent tool for obtaining income and expense information from another party before filing a modification or termination proceeding for child, family or spousal support. In fact it is the only method that can be used before filing any modification or termination proceeding. It is truly a both effective and inexpensive method of obtaining the facts necessary to determine whether or not to request modification or termination of child, family, or spousal support in California.
The statutes that authorize this procedure are found in Chapter 6, Article 3 of the California Family Code, sections 3660 through 3668.
These statutes allow a party to serve a request for an income and expense declaration on the other party before they file a request for order or notice of motion to modify or terminate child, family or spousal support.
The California Legislature states that the purpose of these statutes is to permit inexpensive discovery of facts before the commencement of a proceeding for modification or termination of an order for child, family, or spousal support. See Family Code § 3660.
These statutes provide the only method of discovery before filing a request for order or notice of motion to modify or terminate child, family or spousal support. Other methods of discovery may only be used if a motion is pending. See Family Code § 3662.
Unless a motion for modification or termination of a support order has been filed, a request for discovery pursuant to this article may be undertaken not more frequently than once every 12 months. See Family Code § 3663.
The procedure and relevant rules for using this method to obtain income and expense information from another party before filing a modification or termination proceeding for child, family or spousal support are as follows:
At any time following a judgment of dissolution of marriage or legal separation of the parties, or a determination of paternity, that provides for payment of support, either the party ordered to pay support or the party to whom support was ordered to be paid or that party's assignee, without leave of court, may serve a request on the other party for the production of a completed current income and expense declaration in the form adopted by the Judicial Council. See Family Code § 3664(a)).
If there is no response within 35 days of service of the request or if the responsive income and expense declaration is incomplete as to any wage information, including the attachment of pay stubs and income tax returns, the requesting party may serve a request on the employer of the other party for information limited to the income and benefits provided to the party in the form adopted by the Judicial Council. The employer may require the requesting party to pay the reasonable costs of copying this information for the requesting party. The date specified in the request served on the employer for the production of income and benefit information shall not be less than 15 days from the date this request is issued. See Family Code § 3664(b).
The requesting party shall serve or cause to be served on the employee described in this section or on his or her attorney a copy of the request served on the employer prior to the date specified in the request served on the employer for the production of income and benefit information. This copy shall be accompanied by a notice that, in a typeface that is intended to call attention to its terms, indicates all of the following: (1) That information limited to the income and benefits provided to the employee by his or her employer is being sought from the employer named in the request for production. (2) That the information may be protected by right of privacy. (3) That, if the employee objects to the production of this information by the employer to the requesting party, the employee shall notify the court, in writing, of this objection prior to the date specified in the request served on the employer for the production of income and benefit information. (4) That, if the requesting party does not agree, in writing, to cancel or narrow the scope of the request for the production of this information by the employer, the employee should consult an attorney regarding the employee's right to privacy and how to protect this right. See Family Code § 3664(c).
The employee described in this section may, prior to the date specified in the request served on the employer for the production of income and benefit information, bring a motion pursuant to Section 1987.1 of the Code of Civil Procedure to quash or modify this request in the same manner as a subpoena duces tecum. Notice of this motion shall be given to the employer prior to the date specified in the request served on the employer for the production of income and benefit information. No employer shall be required to produce information limited to the income and benefits of the employee, except upon order of the court or upon agreement of the parties, employers, and employee affected. See Family Code § 3664(d).
Service of a request for production of an income and expense declaration or for income and benefit information pursuant to this section or a copy thereof shall be by certified mail, postage prepaid, return receipt requested, to the last known address of the party to be served, or by personal service. See Family Code § 3664(f).
The form used is Judicial Council Form FL-396 which is a mandatory form. Click below to view the official form.
Note that while the code does not require service of the request on the attorney for the other party, it is probably a good idea to mail a courtesy copy to them assuming that they are still the attorney of record just to cover all of your bases.
Family Code Section 3665 states that,
“(a) A copy of the prior year's federal and state personal income tax returns shall be attached to the income and expense declaration of each party.
(b) A party shall not disclose the contents or provide copies of the other party's tax returns to anyone except the court, the party's attorney, the party's accountant, or other financial consultant assisting with matters relating to the proceeding, or any other person permitted by the court.
(c) The tax returns shall be controlled by the court as provided in Section 3552. 3666. This article may be enforced in the manner specified in Sections 1991, 1991.1, 1991.2, 1992, and 1993 of the Code of Civil Procedure and in the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure), and any other statutes applicable to the enforcement of procedures for discovery. 3667. Upon the subsequent filing of a motion for modification or termination of the support order by the requesting party, if the court finds that the income and expense declaration submitted by the responding party pursuant to this article was incomplete, inaccurate, or missing the prior year's federal and state personal income tax returns, or that the declaration was not submitted in good faith, the court may order sanctions against the responding party in the form of payment of all costs of the motion, including the filing fee and the costs of the depositions and subpoenas necessary to be utilized in order to obtain complete and accurate information. This section is applicable regardless of whether a party has utilized subdivision (b) of Section 3664."
The method discussed in this blog post is not used as often as it should be but in my personal opinion it is one of the most effective child support discovery tools available.
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