THURMAN'S FAMILY LAW TIPS:

FAMILY CODE SECTION 3664 AND ATTEMPTING TO SAVE MONEY WHILE SEEKING UPDATED FINANCIAL INFORMATION

So you have an oldish child or spousal support order, and find yourself wondering how much money your former spouse, domestic partner, or co-parent is earning these days because it seems as if they are living well and your financial resources feel to be comparatively constrained. What might you attempt in order to obtain updated information from the other party, in order to make a responsible decision tover whether to file a Request for modification of support orders. Or, perhaps you are a support obligor and have reason to suspect that the other party's financial situation has considerably improved, and you'd like to modify child support or even better to attempt to modify or terminate spousal support.

Either way, you don't necessarily want to start a new war with the other party, and are sensitive to the possibility that you might be wasting your money if you first hire an attorney to assist you, since the outcome is not at all certain. You probably feel you've already paid too much in attorney fees.

Family Code section 3664 creates a mechanism that may achieve your goal of updating your understanding of the other party's finances and current income stream. Unfortunately, however, it doesn't have a lot of teeth but there are reasons why you should use it nonetheless. It allows you to request, no more than once each year per Family Code section 3663, an FL-150 "Income and Expense Declaration" which must be accompanied by the prior year's income tax returns, per Family Code section 3665.

If that request is ignored by the other party, as it may well be, you can next move to attempting to obtain wage information and paystubs from the other party's employer. Make sure that you follow each of the procedural requirements outlined section 3664. Unfortunately, however, compliance by the employer is voluntary. If the other party fails to provide their "I & E" together with the required tax return attachments, you must now file a motion to compel production of these items in the family court - but that need not be filed together with a Request for Orders modifying support, although you can combine the two in one RFO filing. But there are risks in filing a modification proceeding when you don't have an accurate picture of the relative earnings for you each. For instance, by pulling the trigger on a support modification motion you may find your support actually being reduced if the relative income numbers for each of you now actually favor the other party. Instead, you may want to simply file what is essentially a motion to compel discovery under the Code of Civil Procedure.

Of course, it may well be that the other side behaves honorably and shares the tax information that is required of them without a lot of hoopla, any court filings, and hard feelings - the best scenario for you, since while support orders need to be fair and appropriate to the parties' circumstances there needs to be a fair disclosure of the other party's information in order to know what support amounts are "fair".

Unfortunately, of course, voluntary compliance is the exception rather than the rule in most family law cases. Why even bother with a Family Code section 3664 request given your possibly low expectations of how the other party will respond? The short answer is that you've behaved in an entirely appropriate fashion, have a clear statutory entitlement to the information requested, and you are setting up the likelihood that you will receive an attorney fee award or even monetary sanctions against the other party per FC section 3667 (and always use Family Code section 271 as well), and further that to the extent that a motion to modify support comes to be filed the discretionary decisions that judge's make may favor your cause rather than the reverse. If you are a spousal support payor, for instance, and the support recipient refuses to cooperate you may be increasing the likelihood of a successful outcome for you once your motion to modify or terminate support is heard.

Alternatively, by using this mechanism you may learn that there is no reason for you to file that motion to increase, modify, or terminate a pending support order - which can save you thousands of dollars in worthless attorney fees not to mention a lot of annoyance.

Here is a sample form FL-150.

Want to learn more about discovery in divorce and family law cases?

CALIFORNIA FAMILY CODE

MODIFICATION, TERMINATION, OR SET ASIDE OF SUPPORT ORDERS

Discovery Before Commencing Modification or Termination Proceeding

Family Code Section 3664

(a) 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.

(b) 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.

(c) 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.

(d) 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.

(e) 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.

(f) The form adopted by the Judicial Council for purposes of the request on an employer described in subdivision (b) shall state that compliance with the request is voluntary, except upon order of the court or upon agreement of the parties, employers, and employee affected.