What is discovery in divorce?
Discovery in divorce is generally defined as the pre-trial phase of a divorce case whereby both parties to the case gather the necessary information from the other party. The purpose of discovery is to ensure both parties have access to the same information to allow for better negotiation and reach a fair agreement. Discovery in divorce is a very important process, especially when it comes to resolving contested issues on things like child support, custody, property, assets, finances, and debts. This process comes after a divorce lawsuit has been filed and before the start of trial.
This fact-finding process seeks to avoid surprises at trial and ensures the presiding judge has access to all the facts of a divorce case so that they can deliver a fair ruling based on the law. The discovery process allows both parties to a divorce to meet on a level playing field, have a peaceful negotiation, and have the case settled.
Typically, the discovery process encompasses five steps that are used to obtain information about either party in a divorce. These steps are discussed below.
Interrogatories is an important step of discovery in divorce. This step involves both sides submitting a series of written questions to the other side. These questions seek to obtain information on things such as educational background, work history, income, and more. The questions must be answered truthfully. The involved parties are required to respond within 30 days.
Apart from various types of Judicial Council form interrogatories used in non–family law civil cases Judicial Council Form DISC-001, there are two types of interrogatories available to any party to a discovery in divorce: family law form interrogatories and special interrogatories.
Requests for Admission
Requests for Admission is another tool of discovery in divorce. A request for admission is a written request that another party admit the
- Genuineness of a document,
- Truth of a fact,
- Truth of an opinion relating to fact, or
- Truth of an application of law to fact.
Requests for admission are not used to discover facts but to establish the existence or nonexistence of facts. They also may be used to authenticate documents. Any matter admitted in response to a request for admission is conclusively established against the admitting party in the pending action. However, a party may withdraw or amend an admission only on leave of court granted after notice to all parties. The court may permit the withdrawal or amendment of an admission only upon a showing that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who requested the admission would not be substantially prejudiced in maintaining the action.
The party must respond to the requests under oath and in writing. In addition, if the responding party declines to admit all or a part of a requested admission on the basis of a lack of information, that party must state that he or she made a reasonable inquiry about the matter and that known or readily available information is insufficient to enable him or her to admit the matter.
Unlike interrogatories that tend to be in the form of open-ended questions, admission of facts is designed to obtain “yes” or “no” answers. When the other party doesn’t respond within 30 days, it’s considered as an admission of those facts. This phase is essential in a divorce trial as it reduces unresolved issues where certain facts are deemed admitted.
Request for production
This is a formal request directed to the other party to produce specific documents pertaining to the contested issues in the divorce case. This includes child-related documents, tax returns, financial statements, or any documents relevant to a divorce case. The parties are required to respond in time and follow the right protocols.
Depositions are a form of testimony where participants in a divorce case make statements under oath. Basically, it’s a session where participants give answers to questions asked by opposing attorneys in the presence of a court reporter, but outside the presence of a judge. Deposition statements can be used during trial to uphold agreements that were made during deposition. They may also count as evidence at trial, if necessary. After depositions, the court reporter prepares a transcript that can be used to point out contradictory statements in court. The scope of questions that can be asked in depositions is quite broad.
The steps of the discovery process vary from state to state and depend on factors such as types of issues in dispute, level of cooperation, and the level of access to the required information. Understanding the discovery process and the associated documents can help an attorney construct a better case.
OBTAINING FINANCIAL INFORMATION USING INFORMAL DISCOVERY IN DIVORCE
The family law client is a primary source of financial information. Most clients are able to provide significant information concerning community and separate income, as well as assets and obligations. Counsel should instruct the client to gather and copy financial documents as soon as practicable, certainly before formal discovery begins and before the other party has removed or secreted the documents. Delaying the collection of information increases the likelihood of having to obtain it from another source, especially if the client is not the person who handles the financial responsibilities in the marriage.
Counsel should provide the client with a checklist of potentially relevant documents to gather that is based on an initial assessment of the issues in the case. With respect to documents that a client does not possess but has a legal right and apparent ability to obtain (e.g., bank records), it is generally less expensive and more expeditious to have the client obtain them instead of initiating formal discovery. Some of the more common types of records that a client might be in possession of, or can usually obtain without formal discovery.
Tax Returns for discovery in divorce
- If a client has utilized professional accounting services for the preparation of tax returns, the client should contact the accountant to obtain a copy of the returns. The accountant will almost always comply with this request.
- Alternatively, clients may obtain their federal income tax returns directly from the Internal Revenue Service (IRS). The client can prepare and send the IRS federal Form 4506, Request for Copy of Tax Return, or Form 4506-T, Request for Transcript of Tax Return, available at website . The IRS will then provide the client with copies of the returns.
A litigant who seeks information regarding his or her own income can go directly to the employer and request an earnings history. The party may also request a Social Security statement that shows a record of the earnings on which Social Security taxes have been paid for prior years by creating an account on the Social Security Administration’s (SSA) website . In addition, the SSA appears to have resumed sending out periodic statements of these earnings to persons who have not created such an account. However, counsel should be aware that an SSA earnings report does not show a record of all income earned by the taxpayer, only the income on which the taxpayer has paid Social Security taxes.
Voluntary Information from Employers
It is important for discovery in divorce to gather information from Employers. An employee spouse may obtain information on his or her own income and benefits directly from his or her employer. The nonemployee spouse may have a more difficult time obtaining this information voluntarily and may need to serve a subpoena on the employer. On the use of a notice of adverse interest.
If counsel has reason to believe that an employer is assisting an employee in avoiding a child support obligation, a letter to the employer along with a citation to civil code 1714.41 may be merited. Any individual or business entity who knowingly assists a child support obligor with an unpaid support obligation to escape, evade, or avoid payment of child support is liable for three times the amount of the “value of the assistance provided.” The value might be assessed as the fair market value of the assets transferred or hidden, or the amount of the wages or other compensation paid to the child support obligor but not reported. The maximum liability may not exceed the entire support obligation due.
Consult a divorce attorney
If you’re going through a divorce, you must be well-versed with the discovery process in divorce. Most importantly, you’ll need to consult a knowledgeable and experienced divorce attorney who will help you navigate through the discovery process. An attorney will ensure your rights are protected throughout the divorce process and assist you in reaching an equitable resolution of your case.