5 ways of collecting evidence in divorce

collecting evidence

California family law requires full financial disclosure unless waived by the parties.

The penalties for hiding or failing to disclose property are stiff: fifty or one hundred percent of the assets value. Regardless, men and women hide and refuse to disclose finances every day. Some even destroy or alter records. I think the limbic system or paleomammalian brain lights up, survival instincts kick-in and spouses try desperately to protect themselves, guarding income and assets likes dogs with bones.

Thankfully, most financial transactions leave paper or electronic trails with banks, brokerage firms and the like. If a spouse does not exchange information freely, a third party can be ordered to produce evidence in and through discovery.

“Discovery” is collecting evidence, formally or informally, in a legal action or lawsuit.

California Code Title 4 is the Civil Discovery Act controls family law discovery and establishes timelines, methods and tools that may legally be used by spouses in separation or divorce.

As a general rule, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence.

With the goal of full, truthful disclosure, California family law judge liberally apply the Civil Discovery Act, which means almost everything personal is relevant in family law matters. Everything except evidence that infringes on privacy rights of nonparties and evidence that is privileged or protected by law.

Evidence commonly discovered in separation or divorce are corporate business records, tax returns, employees’ payrolls, accounting records, bank, brokerage and credit card statements.

The most common discovery tools used to collect evidence are Releases, Subpoenas, Requests for Production of Documents, Form Interrogatories, Special Interrogatories and Depositions, described below.

1. A Release may be ordered or voluntarily signed by a spouse and authorizes ‘s  third parties to produce a spouse’s private records.

IRS form 4506-T is the Federal form that authorizes the IRS to release a person’s tax returns to others. Some banks and other institutions have organizational forms to use or accept a notarized “Authorization for Release of Records”. If using Releases it’s best to ask the third parties about any requirements that must be satisfied before they will release the records.

There are instances when third parties will only produce documents upon service of a valid Subpoena Duces Tecum to avoid or reduce any liability for disclosing private information to others.

2. A Subpoena Duces Tecum is a court order requiring a third person or entity to produce documents demanded. Subpoenas prove helpful when spouses refuse to produce evidence demanded in Interrogatories, Admissions and Requests for Production of Documents.

3. A Request or Demand for Production of Document is just that, a request or demand that a spouse produce documents relevant to the case. A spouse can make multiple requests for production as the need for more information arises. Documents sought may include, among others, financial, employment, school and medical records.

Sample Requests:

  1. Bank statements, canceled checks and check registers for Wells Fargo Bank checking account number ending in 6001 for the period beginning on May 1, 2005 and ending on January 31, 2008.
  2. Credit card statements for Chase credit card number ending in 3861 for the period beginning on May 1, 2005 and ending on January 31, 2008.
  3. Bonus reports prepared for you by your former employer John Doe, LLC for the period beginning on May 1, 2005 and ending on January 31, 2008.
  4. Appraisals for the real property located at 1234 Cherry Lane prepared between May 1, 2005 and ending on January 31, 2008.
  5. Loan applications prepared by you or on your behalf between May 1, 2005 and ending on January 31, 2008.

4. Interrogatories are written questions that must be answered in writing and under oath.

There are two types of Interrogatories, Form Interrogatories, and special Interrogatories. Form Interrogatories (California Judicial Council Form FL-145) request information common to most separations and divorces in California. A spouse may demand his/her spouse respond to both Form Interrogatories and Special Interrogatories.

Unlike standardized Form Interrogatories, special interrogatories are questions written by lawyers and answered in writing under oath. If a spouse wants answers to more than thirty-five Special Interrogatories, he/she must provide in a written declaration attached to the Special Interrogatories, valid reasons for asking additional questions.

Interrogatories are usually open ended questions but may also call for “yes” or “no” answers that are relevant to the family law issues. If Interrogatories are used early in a case, and more information is needed, a party may serve Supplemental Interrogatories. Responding parties may, and do, object to Interrogatories for any number of reasons.

Sample Special Interrogatories:

  1. What was the purpose of your June 15, 2006 trip to the Cayman Islands?”
  2. Did you open a new bank account while you were in the Cayman Islands between June 15, 2006 and July 1, 2006?
  3. If you answered “yes” to Interrogatory No. 2, how much money did you deposit into the new bank account?
  4. If you answered “yes” to Interrogatory No. 2, what was the source of the funds that you deposited into the new bank account?

A responding party is under no duty to update his/her responses to Interrogatories if/when new information surfaces or facts change after a spouse responds to Interrogatories. The propounding party has the burden of serving supplemental interrogatories to discover any new information uncovered with the passage of time.

5. Depositions are usually oral questions asked under the supervision of an officer, usually the court reporter, who is authorized to administer an oath. The questions and answers are recorded stenographically (with a transcript to follow) and/or by audio or video recording. Attorneys and parties may make objections and cross exam witnesses during a deposition. A transcript, audio or video recording of the deposition may be admissible at trial under certain circumstances. (CCP § 2025.010 et seq.) Depositions on written questions may be used on occasion, but it’s rare.

Spouses and lay witnesses may only be deposed once and for a total of seven hours, except by agreement or a court order based on good cause. Expert depositions may extend beyond the seven-hour time limit. California family law judges have the discretion to determine the ultimate length and number of depositions.

Sample Deposition Questions:

  1. Where were you on June 15, 2006?
  2. What was the purpose of your June 15, 2006 trip to the Cayman Islands?
  3. With whom did you travel?
  4. Where did you stay?
  5. Isn’t it true that you took a woman with you on your June 15, 2006 trip?
  6. Isn’t it true that you purchased a diamond tennis bracelet while you were in the Cayman Islands on June 22, 2006?

Depositions with attorneys and a court reporter are expensive and usually, a discovery tool of last resort. In hotly contested cases with difficult spouses (i.e. narcissists) videos taken during Depositions are used to capture bad conduct or scare a spouse straight.

6. Requests for Admissions may be used to force a spouse to admit to the authenticity of documents and/or facts in dispute in  a case. There is no limit on the number of requests for admissions to the genuineness of documents. There is a limit of thirty-five requests for all other unless legitimate legal reasons exist and justify additional requests. A declaration of supporting facts must accompany requests in excess of thirty-five.

If a party doesn’t respond to discovery demands, the propounding party must meet and confer with the responding party in an attempt to resolve any disputes or objections. An attorney usually writes a “meet and confer” letter outlining the responding spouse’s shortcomings and asking for corrective action within a short period. If the issues aren’t resolved by a meet and confer, the propounding party may file a Motion to Compel Responses. If the responding spouse doesn’t have legitimate legal reasons for failing to comply voluntarily, a judge may sanction the responding spouse, and any objections are waived.

Discovery can be simple or complex. It may be waived or embraced. Ultimately it depends on the unique circumstances of each case. If you’re self-represented and would like my with discovery, please complete the form below to schedule a consultation.




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