Divorce Disclosures and Discovery

San Diego Declarations of Disclosure Lawyers – Discovery Attorneys

During the middle stages of your case, parties to a divorce, legal separation or nullity case may engage in a variety of discovery processes.  Some processes are required and some are not.  Discovery is the process by which parties collect information in preparation for trial or settlement using the California Code of Civil Procedure and Civil Code.  Many lawyers have experience in conducting discovery; however, not all attorneys do so in a cost-effective and efficient manner.   Attorneys should be familiar with the process to ensure the other side complies with the rules of discovery.  California law provides the discovery mechanisms available for family law litigants to gain information that will be useful in their case.  Since family law is a branch of civil law, the courts are bound by the rules of evidence and cases are won and lost with the information provided to the court.  Often litigants believe that merely showing up on their court date with documents, exhibits and information to prove their case is sufficient – unfortunately, those litigants are wrong.  Evidence must be obtained and presented in the proper manner for consideration by the court. 

Forms of Discovery

Preliminary Declarations of Disclosure

Preliminary declarations of disclosure are required in all divorce or dissolution of marriage cases.  During the middle stages of divorce matters, the parties are required to voluntarily exchange certain documentation and information regarding their assets and debts, income and expenses.  These must be done immediately and updated upon the change of information.  Failure to update disclosures of materially changed information is a breach of fiduciary duty.  In divorce actions, parties appearing in the case are required to complete and exchange Declarations of Disclosure, or DOD’s.  In a default case, where the respondent does not appear, only the petitioner needs to complete and serve his or her disclosures.  In annulment actions, only the petitioner needs to complete his or her preliminary DOD’s. 

To complete the DOD’s the family law litigant and his or her attorney will prepare answers on two pre-printed forms called an Income and Expense Declaration and a Schedule of Assets and Debts.  The information provided on these forms is important to the dissolution proceeding and taken seriously by the court.  Committing perjury or not taking the time to fill out the forms in a complete and honest manner may have significant negative impacts.  Generally, these forms are not complete if the proper attachments are not included.  If current bank statements, property deeds, life insurance policy statements, investment account statements, or vehicle values are not included with the Schedule of Assets and Debts, for example, the form is not incomplete.  For example, if pay stubs, certain tax forms, attachments pertaining to rental income, or retirement account statements are not included with the Income and Expense Declaration, the form may be incomplete.  

Formal discovery processes involve more complex and sometimes costly procedures designed to obtain additional information.  This process can often be complicated; however, our attorneys are experts in the discovery process, enforcing discovery procedures, filing motions to compel discovery responses, and obtaining sanctions against the opposing party for failures to comply. 

Depositions

A deposition is an excellent way to obtain information in family law cases.  Depositions involve taking the testimony of a party or other persons with relevant information, which is done under oath in the presence of a court reporter.  Questions are asked of the deponent, and then transcribed by the court reporter.  While depositions may be conducted in an informal setting such as a law office conference room, the testimony is admissible in the court proceeding just like if the deponent testified right in the courtroom in the presence of the judge or commissioner.  

Our attorneys are experienced in conducting and defending oral depositions.  Preparing for the taking of a deposition can be a tedious process, but if done correctly can result in significant benefits.  Testimony resulting from a deposition can serve as the basis for an effective cross-examination of the witness later during trial for impeachment, or more simply, can result in the acquisition of valuable information.  

Interrogatories

Interrogatories are a series of written questions that are presented to the opposing party in your case.  The opposing party must then prepare answers to the questions and return them, signing under penalty of perjury that the answers are truthful.  Objections to the form or content of questions may be made at the time responses are sent to the propounding party.  Form interrogatories, which are pre-printed questions relating to matters that are most common to most divorce, legal separation or nullity proceedings, are a cheap and effective way to obtain relevant information from the other party.  Special interrogatories are specifically drafted questions.  All answers to interrogatories are answered under oath.

Request for Production of Documents

A request or demand for production of documents allows family law parties to acquire certain documents and other tangible objects that may be relevant to the divorce, legal separation, paternity, nullity or domestic violence case.  The responding party must use reasonable efforts to provide the documents or tangible items requested.  If the documents or tangible items are unavailable or do not exist, the responding party must state that they have diligently searched for the document or thing demanded. 

Subpoenas

A subpoena is a court order requiring a party or other person to appear in court or produce certain documents or other tangible property or information.  The rules concerning subpoena processes are complex and require the assistance of counsel. 

Mental or Physical Examinations

In cases in which a party’s mental, emotional or physical condition is at issue, which includes all custody and visitation matters, the other party may request a mental or physical examination to determine the validity of the party’s claim.  Court appointed experts are selected to conduct the examination, and the resulting evaluation is admissible in court but subject to cross examination.  This means that a party not happy with the report or evaluation may provide his or her own expert to testify regarding the contents of the report.  Physical and mental examinations are common in cases where a party refuses or cannot become employed, resulting in a vocational evaluation, and where a parent has mental or physical shortfalls and the other party believes they cannot adequately parent a child.   

Roles of Party and Attorney

The role of client and attorney differ greatly when it comes to preparing and serving disclosures and discovery.  For example, the client’s role involves thoroughly and diligently searching for documents requested, answering interrogatories by providing information to the attorney, and providing background information to the attorney to provide the best strategy for obtaining information from the other side.  The attorney’s role involves making legal objections, putting the information or answers in the correct format, sequestering computer disks and computer information, providing the client with instructions for his or her responses, and so on.

Having an experienced family law and divorce lawyer on your side is essential to obtaining information, forcing the other side to comply with your requests, and using the court to intervene if the other side refuses to comply with the law.  Our attorneys have extensive experience filing motions to compel the other side the respond, and in some instances filing motions for sanctions.  Please contact us today to schedule your free initial consultation by calling our office at (619) 284-4113, visiting our office in Mission Valley, or filling out our free case evaluation form which will send an email to our partners immediately.