Collecting evidence in legal separation and divorce is called discovery.
California Code Title 4 is the Civil Discovery Act that governs and regulates the legal discovery process. Formal discovery requires adherence to strict requirements and using any or all of the following discovery tools.
Documents and testimony gathered through discovery are used to make informed settlement decisions, prepare for trial, enforce or modify a judgment or order.
Bank statements, pay stubs, mortgage applications, bonus reports, life insurance disclosures, property deeds and any other relevant information may be collected so long as the information and documents aren’t privileged and/or protected by law.
Examples of privileges that may be asserted and prevent documents from being produced are the attorney-client privilege, doctor-patient privilege and third party rights of privacy.
The discovery process usually begins after a spouse initiates legal proceedings. It may continue until settlement or shortly before trial on the discovery deadline.
The Five Discovery Tools
There are five discovery tools regularly used by lawyers and self-represented parties to gather records and testimony.
These tools include Releases, Subpoenas, Requests, Interrogatories and Depositions.
Releases authorize third parties or entities to produce someone’s private personal records.
IRS form 4506-T, once signed, authorizes the IRS to release a person’s tax returns to others.
Banks and other institutions may have forms to use or a simple one page “Authorization for Release of Records” can be prepared and signed before a notary.
Subpoenas are court orders requiring a witness to appear or a custodian of records to produce documents on a particular date and time.
Any person or entity receiving a Subpoena must comply unless a valid legal reason like a privilege exists.
Failure to comply with a Subpoena is punishable by law and may result in a contempt of court finding.
Subpoenas may be issued during the early stages of an adversarial divorce or legal separation to quickly gather evidence from a difficult spouse or third parties.
Document demands or requests served on a spouse are commonly referred to as Requests or Demands for Production of Documents. Requests can be lengthy and require the production of documents created before, during, and/or after the date the divorce was filed or finalized.
The responding party’s production deadline is mandated by state law, but it’s common for responses to be late as a result of delays caused by third parties.
A spouse can make several requests during the discovery process as the need for more information arises. Documents sought may include, among others, financial, employment, school and medical records.
- 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.
- 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.
- 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.
- Appraisals for the real property located at 1234 Cherry Lane prepared between May 1, 2005 and ending on January 31, 2008.
- Loan applications prepared by you or on your behalf between May 1, 2005 and ending on January 31, 2008.
If yours is an uncontested case and your spouse is freely providing requested information, formal requests may not be necessary.
Interrogatories are formal written requests for answers to your relevant questions. Like Requests, Interrogatories can be very lengthy and may include questions that cover events and issues arising before, during, and after marriage or divorce.
There are two types of Interrogatories, Form Interrogatories and Special Interrogatories. Form Interrogatories are standardized questions and requests included in California Judicial Council Form FL-145.
Special Interrogatories are unique questions and requests prepared by lawyers and self-represented parties and must be answered under oath and penalty of perjury.
Interrogatories are usually open ended questions but may also call for “yes” or “no” answers.
- What was the purpose of your June 15, 2006 trip to the Cayman Islands?”
- Did you open a new bank account while you were in the Cayman Islands between June 15, 2006 and July 1, 2006?
- If you answered “yes” to Interrogatory No. 2, how much money did you deposit into the new bank account?
- If you answered “yes” to Interrogatory No. 2, what was the source of the funds that you deposited into the new bank account?
Depositions are sworn testimony taken under oath in the presence of a court reporter who records every question, answer and comment made by the deposition participants including but not limited to, the witness and lawyers. Videographers also may record a deponent’s testimony to ensure a witnesses mannerisms are captured.
Depositions are usually conducted in lawyers’ offices and last a few hours. Testimony given during a deposition may be used as evidence at trial to establish facts or challenge the credibility of a witness (i.e. prove that a spouse is lying about his 2007 bonus).
Sample Deposition Questions:
- Where were you on June 15, 2006?
- What was the purpose of your June 15, 2006 trip to the Cayman Islands?
- With whom did you travel?
- Where did you stay?
- Isn’t it true that you took a woman with you on your June 15, 2006 trip?
- Isn’t it true that you purchased a diamond tennis bracelet while you were in the Cayman Islands on June 22, 2006?
It’s common for spouses, wives, girlfriends, boyfriends, lay witnesses and expert witnesses to be deposed. Depositions are expensive and usually a discovery tool of last resort.
Choosing your Discovery Tools
The types of discovery tools used in divorce depend on the facts and circumstances of a case.
If a marriage was of short duration, didn’t involve any joint assets or debts, and the spouses know each others’ financial circumstances, formal discovery may not be needed or used. Releases and the informal exchange of information may be enough.
If a marriage was of long duration, one spouse controlled finances and records, or the case is contentious, formal discovery can be extensive and take a lot of time to complete.
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