Discovery in Family Law Matters

DISCOVERY & DISCLOSURES

During the pre-trial or pre-settlement stage of your case, parties to a divorce, legal separation or nullity case may engage in a variety of discovery processes.   Discovery is the process by which parties collect information in preparation for trial or settlement.  Pro per litigants often have difficulty collecting information using discovery tools because often the pro per litigant needs to have the court’s approval to conduct certain methods of discovery, such as propounding subpoenas to third parties.  Most attorneys have extensive experience in conducting discovery in a cost-effective and efficient manner, and are versed in the procedure to force the opposing party or third parties to comply with responding to discovery.  The California Code of Civil Procedure provides the discovery mechanisms available for family law litigants to gain information that will be useful in their case.  The more useful information that a party gains through discovery in preparation for trial the better opportunity that party has to succeed in trial or force a favorable settlement.  

Forms of Discovery

Required Discovery in All Family Law Dissolution Cases – Disclosures

During the informal discovery process, the parties are required to voluntarily exchange certain documentation and information regarding their assets and debts, income and expenses.  In family law divorce, legal separation and dissolution of domestic partnership matters both parties are required to complete and exchange Declarations of Disclosure, or DOD’s.  In nullity cases, the petitioner must complete their preliminary declarations of disclosure.  These disclosures must be done within a reasonable period of time after the case is filed and the respondent is served with process.  Additionally, both parties have an ongoing fiduciary obligation to keep their spouse informed of all material changes in their financial information if such information changes during the pendency of the case. 

There are two required DOD’s.  First, the parties must exchange preliminary DOD’s after the respondent is served with the petition and summons in the case.  Second, the parties must exchange final DOD’s, which occurs before a settlement agreement is filed or the date set for trial.  The final DOD’s may be waived by the parties; however, the preliminary DOD’s may not be waived by either party.  To complete the DOD’s you and your attorney will prepare answers on two preprinted forms called an Income and Expense Declaration and a Schedule of Assets and Debts.  The information you provide on these forms is important to your dissolution proceeding and taken seriously by the court.  As a result, it is critical that you accurately and completely fill out these forms.  Generally, these forms are not complete if the proper attachments are not included.  For example, if current bank statements, real property deeds, life insurance policy statements, investment account statements, or blue book values of vehicles are not included with the Schedule of Assets and Debts, for example, the form may be incomplete.  If pay stubs, certain tax forms, proof of rental income, retirement account receipts are not included with the Income and Expense Declaration, for example, the form may be incomplete.   

There is also a formal discovery process which involves more complex and costly procedures designed to obtain additional information.  This process can often be complicated; however, there are certain discovery tools that are often used in family law cases. 

Depositions

A deposition is the out-of-court questioning or interrogation of a party to a case or a third party with relevant information.  If the opposing party in your case is being deposed, then your attorney will present oral questions to the party which he or she will answer under oath.  If you are being deposed, you will answer questions from the opposing party’s counsel.  Your attorney will also be present to defend you during the deposition by making appropriate objections to the questions asked by the other side.  There is also usually a court reporter present at the deposition to create a transcript of the questions and answers.  The deposition transcript may be audio and/or videotaped and may be admitted as evidence if your case ends in trial.  Depositions are an effective method of gathering information as well as determining how a party or witness will testify at trial.  Depending on the strategy employed by you and your attorney, depositions may be noticed at any time during a dissolution, legal separation or nullity case, as well as within paternity actions, so long as the statutory cutoff period for discovery has not expired.

Our attorneys are experienced in conducting and defending against depositions.  If you are being deposed, we will also help you to prepare for the deposition so you know what to expect and how to best answer questions.

Interrogatories

Interrogatories are a series of written questions, usually drafted by your attorney, that are presented to the opposing party in your case.  The opposing party or his or her attorney will draft answers to the questions and return them to your attorney.  Unlike depositions, interrogatories may only be presented to the parties in a case.  In family law, either party may propound form interrogatories, which are pre-printed questions relating to matters that are common to most divorce, legal separation or nullity proceedings.  Your attorney may also draft additional questions that are specific to your case, called special interrogatories.  All answers to interrogatories are answered under oath and the answer party’s signature appears under the following statement:  “I hereby declare that the foregoing responses are true and correct under penalty of perjury under the laws of the State of California.”  Interrogatories are similar to depositions in that it is an effective method of gathering information.  However, unlike depositions, the answers to interrogatories are generally prepared by an attorney rather than by the parties to a case.

Request for Production of Documents and Subpoenas

A request for production of documents allows the parties to a case to request that the opposing party produce certain documents and other tangible objects that may be relevant to your case.  The responding party must use reasonable efforts to provide the documents or tangible items requested, and must declare that they have diligently searched for the same if the documents are unavailable. 

A subpoena is a court order requiring a party to a case or a third party to appear in court or produce certain documents or other tangible property.  Subpoenas can be also used in the same manner as requests for production of documents if you wish to obtain documents or inspect property from a third party. 

Request for mental, physical or emotional examination

Where a party to a case claims that he or she has a mental or physical condition that prevents him or her from seeking gainful employment, the opposing party may request a mental or physical examination by a physician or other professional. Also, in cases in which a party’s mental or emotional condition is at issue, which includes all custody and visitation matters, the opposing party may request a mental or emotional examination to determine the validity of the party’s claim.  Before a party will be required to undergo such an examination, the requesting party must convince the court that good cause for granting the request exists. 

Attorney and Client Roles

You and your attorney will work together to decide which discovery tools to use in your case.  Your attorney can inform you of the best method of obtaining information as well as the strategic considerations relating to the discovery process.  Your attorney can also advise you of the monetary implications of proceeding with a particular discovery method, as some are more costly than others.

Your attorney will also prepare the discovery requests as well as make legal objections to discovery requests from the opposing party to ensure that your rights are protected.  Your attorney will also synthesize the information obtained during discovery to determine what will be most helpful in your case.  There are also requirements under California law that parties to an ongoing case “meet and confer” at various stages in the litigation process, including discovery.  Your attorney will ensure that these meet and confer requirements are met as well as conduct the meetings with the opposing party.

California law imposes penalties where the parties fail to properly conduct discovery.  The assistance of an attorney is helpful to avoid incurring penalties for violating discovery laws as well as to protect your rights when the opposing party fails to comply with discovery laws. 

Your role as a client will be to assist your attorney in providing the required information for both the required Declarations of Disclosure as well as information in response to the discovery requests from the opposing party.  For example, if the other party serves your attorney with interrogatories, you may assist your attorney by preparing a brief, but complete response to the questions.  At every stage in the disclosure and discovery process, the more work you can do to assist your attorney, the more money you will be able to save in your case.  

The lawyers at Wilkinson & Finkbeiner, LLP understand that the discovery and information process found in litigation matters can be daunting, especially for self-represented or under-represented litigants.  Our attorneys have many years of experience in the discovery process, and are familiar with the appropriate actions to take when the other side is not complying with disclosure or discovery requests or demands.  Sometimes court intervention is necessary to enforce the discovery rules, such as when a “motion to compel” is filed with the court.  Feel free to call us today at (714) 667-0045 or contact us by email.