Discovery in Divorce, Legal Separation, Annulment and Paternity Cases
Discovery is the process by which parties collect information from the other party, or from third parties or entities, in preparation for settlement or trial in a case. In family law cases, parties to a divorce, legal separation, or annulments may engage in the discovery process to become more knowledgeable and gain information that will be useful in their matter if they go to court.
There are many forms and tools of discovery utilized by attorneys handling divorce and legal separation cases. There are both required and optional forms of discovery in family law cases.
Required Discovery- Disclosures:
In divorce, annulment, and legal separation matters, parties are required to complete certain documentation concerning their income, expenses, assets, and debts and exchange this information with the other party. This information is called “Declarations of Disclosure” or “DODs”. Pursuant to Family Code Section 2104, parties are required to serve this documentation within sixty (60) days of filing either their Petition or Response. Both parties then have an ongoing fiduciary obligation to keep their spouse informed of all material changes in the financial state during the pendency of the case.
To complete their DODs, parties must fill out an Income and Expense Declaration, Schedule of Assets and Debts, and Declaration of Disclosure. Parties must also attach all relevant supporting documentation such as copies of their pay stubs, account statements, investment statements, and so on. It is important to fill out these forms as accurately as possible as these forms may serve as a basis for attempting to settle the case. If a party misrepresents information or intentionally omits information, the court could hand down extremely severe punishments to that person, including ordering that the other party will receive the entire asset, or there can be monetary and/or evidentiary sanctions imposed.
Our attorneys at Wilkinson & Finkbeiner, LLP have prepared and advised clients as to all required forms for parties to complete their DODs.
Parties also have the option to engage in other forms of discovery that are not required by the Court. These discovery practices may be useful in most cases where one party feels the other may not be disclosing all relevant information. These optional tools for information gathering in discovery may include some of the following methods:
Discovery in divorce cases can be extremely important. If not done correctly, a party can lose their right to conduct further discovery, they can be sanctioned by the court, or the information sought may never be gathered. Contact our office today for a free consultation concerning discovery in your divorce, dissolution of marriage, legal separation, nullity or paternity action.
As Temecula divorce experts, we often receive questions about discovery. Here is a sample of those questions as well as typical answers.
What is Discovery?
Discovery is a general legal terms which refers to information gathering in a civil case, which includes divorce and other family law cases. Discovery is allowed under the California Code of Civil Procedure, and details the mechanisms in which parties to a case can access information. There are a number of very specific rules for gathering information and forcing the other side (as well as third parties) to provide information. The CCP also details mechanisms that a party can utilize to enforce the rules. Discovery may consist of demands to produce documents or things, special interrogatories (questions that other party must answer under oath), form interrogatories (general questions that the other party must answer), depositions (oral questions answered under oath), subpoenas (demands for documents sent to third parties), and so on.
What Discovery is Typical in Divorce Cases?
There are specific “form interrogatories” for family law cases. The form questions ask for the party to give the following information, generally:
-Their name, address and aliases.
-Whether they live with anyone.
-Whether they receive income from anyone.
-Whether they support anyone.
-Whether they are requesting reimbursement for post-separation expenditures on community obligations.
-They may be asked to complete a Schedule of Assets and Debts.
-Whether the responding party and their spouse reached any agreements.
-How much the party has paid in attorney fees.
-Whether the party has any physical limitations.
The form interrogatories are the most common discovery tool; however, many family law attorneys utilize many different discovery tools. It truly depends on the circumstances of a case what discovery methods are utilized.
What if the Other Party Doesn’t Respond?
If the responding party to a discovery demand does not respond or provides incomplete responses, the propounding party can file a motion with the court seeking compliance. These are called motions to “compel” responses, and the prevailing party is entitled to have their attorney fees paid for entirely. Motions to Compel are extremely complicated and can be very technical. If the motion is not filed correctly, the motion will be denied. There are also strict requirements to “meet and confer” (which means to essentially negotiate) before a motion to compel is filed.
I Just Received a Discovery Demand from the Opposing Party in my Case – What should I do?
Call your attorney. When discovery is propounded, it is essential to have a knowledgably divorce attorney working with you. This is particularly true when you receive a demand for ESI (Electronically Stored Information.) You and your attorney should develop a game plan to respond to the demands. If you received a demand for documents, you should begin gathering the requested documents. It will assist your attorney tremendously if you can organize the documents by the number of the request.
When does Discovery Begin and End?
The Respondent in a divorce case can begin conducting discovery immediately upon filing a response in the case. The Petitioner must wait ten days after the Respondent was served with process to begin conducting discovery. This allows the Respondent to obtain equal footing in the case and prevents the Petitioner from serving the Respondent with the summons and slamming them with discovery demands at the same time. Discovery usually must be completed thirty days before trial in a matter.
What if the Discovery Demand Seeks Private Information?
In some cases, a person can file for a “protective order” when discovery demands seek private information. If the information concerns a party to the case, the private information must not be relevant to the case if it is to be protected, or it is discoverable. Most litigants’ private lives become no longer private once a case is started. If a third party’s information is the subject of a discovery demand, there may be legitimate grounds to protect that information and the trial court will issue the protective order if necessary. Again, this is a complicated area of law and the rules are immense. Therefore, it is wise to seek the advice of a qualified attorney to assist you.
Our Temecula family lawyers are knowledgeable concerning the rules of discovery. We know how to propound effective discovery and respond to discovery demands. Our office in Temecula is conveniently located and we look forward to meeting with you concerning your case at your convenience.