As a San Diego Family Law Attorney, I often receive calls from former clients asking if they can find out their former spouses current income without incurring a lot of attorney fees or filing an expensive, time-consuming motion. Here are two examples of those calls:
• One former client suspected her Ex-Husband was earning significantly more than he was a year ago when their divorce was finalized because he recently bought a new car and moved into a bigger house. He refused to tell her his current income. If true, the amount of child support she receives could increase.
• Another former client knew that his Ex-Wife received a promotion, but did not know if a raise came with the promotion. She refused to tell him if she received a raise. If she received a raise along with her promotion, then his child support obligation would decrease, or depending on how much of a raise she received, he might be eligible to receive child support from her.
Fortunately for both clients, the Family Code provides for a way to obtain a current Income and Expense Declaration by permitting a party to engage in inexpensive post-Judgment discovery prior to filing a Motion for Modification of Child, Family or Spousal Support. More specifically, at any time after the entry of a Judgment of Dissolution or Legal Separation that provides for the payment of child or family support, either party, no more than once per year, may request the other party to produce a completed current Income and Expense Declaration with copies of that party’s pay stubs and prior year state and federal income tax returns attached.
A request for a current Income and Expense Declaration with a copy of the prior year tax return and pay stubs is the only limited discovery allowed if a Motion for Modification or Termination of the Support Order is not pending. That means if a party wants to engage in other methods of discovery, such as Interrogatories (which are questions asked of the other party) or a Request for Documents, then he or she would first need to file a Motion for Modification or Termination of the Support Order.
By allowing a party to obtain an Income and Expense Declaration from their former spouse, the requesting party can determine whether filing a Motion for Modification is appropriate. If it turns out that there is no change of income, then the filing of a Motion for Modification could be expensive, especially if there is no (or minimal) change to the amount of support paid or received.
Sometimes, a former spouse will ignore the request for a current Income and Expense Declaration. If this occurs, the Family Code provides that if there is no response within 35 days, or if the Income and Expense Declaration is incomplete as to any wage information, or if pay stubs and income tax returns are not attached, then the requesting party may serve a Request for Income and Benefit Information directly on the employer of the other party. The non-responding party may also be sanctioned by the court for his or her failure to comply with the initial request.
Please contact us if you wish to obtain a current Income and Expense Declaration from your former spouse, or if you have received a Request for Production of An Income and Expense Declaration After Judgment from your former spouse.
San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer in San Diego who also holds an MBA and a CPA. Don’t settle for less when determining your post-Judgment rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.
Photo by Andrew Magill