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Tuesday, April 7, 2015

What is "Discovery" and Do I Need to Do It in My Case?

 THE exchange of  information in a divorce, related to the respective economic, financial, and personal situations  -- including the extent of the property ownership, debt, and income, is part of the discovery process in litigation. Even if a case is not going to trial, the parties are entitled to know the extent of the assets, debts, property, financial transactions, etc.  

The exchange of this information is known as the "discovery" process generally, and there are very specific rules that apply to specific applications.  If assets are hidden or never disclosed, if debts are amassed and never disclosed, if someone won a lotto and never disclosed it, or any type of financial gain or big loss that was kept hidden, the other spouse should know about it.

In California, there has been ongoing case law dealing with financial issues where one spouse basically gets left out of the loop and doesn't know the full scope of what was going on (non disclosure)...

 and when that kept happening, the Courts finally realized that "non disclosure" was the center of many cases going to appeal.  

New laws were passed to change the Family Code so that declarations of disclosure are done properly to help each litigant know their financial picture.  

For example, if a wife did not realize to what extent her husband had in terms of a trust funded by community assets, or stock purchased with community earnings (earned during marriage, and not from separate property) or a business that was set up with community earnings, and operated online such as an adult x rated venue, which takes in money online from credit cards--you get the picture.  Or maybe the husband was paying support to an unknown child father outside of wedlock for 10 years.

Depending on the case, many scenarios can have mixed facts, and not all cases will be alike. In fact, it takes years of working in Family Law to really see how bad things can get, especially if one party files bankruptcy and the other one does not.  Fortunately, the bankruptcy rules help the spouse who has been shafted, for the most part, especially if fees relate to spousal support.


Document Production

In "document production" both spouses make available all documents that relate to the divorce, the marriage, their separate property, incomes, etc. Any party has a right to see most documents that even arguably relate to the divorce and related issues that will require resolution -- including division of property, finances, and debt; child custody and visitation; payment and receipt of child support; and payment and receipt of spousal support (alimony).

Interrogatories and Requests for Admissions

Interrogatories are questions requiring a spouse's version of the facts and support for his or her demands. These questions can be pre-printed "form" interrogatories, or specific questions asked just for your case called "special" interrogatories. 

Questions can range from the broad ("Describe your current relationship with your children") to the specific ("Is it your position that respondent's taxable income for 2004 was $45,000?"). 

If the questions asked are not fair questions or are difficult to understand, your attorney will help you decide which questions should be answered and which should be objected to.

"Requests for admission" are not often used in divorce cases, but they can be very powerful tools. Requests for admission ask a party to admit or deny certain facts pertaining to the divorce and related issues, and they carry with them penalties for not answering, for answering falsely, or even for answering late.


Depositions are sworn statements, when a person will answer questions from an attorney, and a court reporter will make a transcript of all that is said. Depositions can range in length from an hour to a week or more. Although all attorneys have their own strategies for depositions, there are basically two reasons to use them: to see what the other side has, and to do a "practice trial," that is, to see how a witness will appear and conduct themselves before a judge or jury.

Your attorney will tell you what he or she wants from you if you are deposed, but there are two general things to remember. First, never guess. The purpose of a deposition is to give facts, not to speculate as to what might have happened or what the right answer might be. Even if it makes you self-conscious to say it, sometimes "I don't know" is the right answer. Second, it is human nature to want to explain things so that your listener understands, but you should resist the impulse. It is your opponent's job to get the answers. It is your job to answer only the question asked, not to offer additional information.

Things to Remember About Discovery

  • Keep in mind that it is very likely that anything and everything will come out at some point in the discovery process. In divorce cases, this is especially true if the case becomes contentious and emotions run high.

  • It is imperative that you be honest with your divorce attorney about the facts and documents that may come out.  He or she can't do the best job if you don't disclose everything.

  • Be honest. Nothing will make your position in a divorce case worse than lying in discovery and getting caught (i.e. about hidden assets, etc.), and it is likely that you will get caught if you are purposefully dishonest.

- See more at: http://family.findlaw.com/divorce/exchange-of-documents-and-information-discovery.html#sthash.T1CvXq53.dpuf