Gathering evidence in divorce can be difficult but there are legal processes and tools that when used, legally compel persons and entities to produce the evidence demanded if it exists and is not protected.
Discovery is the legal process of obtaining important information during divorce, legal separation or the dissolution of a domestic partnership. Spouses use it to gather evidence from each other or from third party sources like banks or employers.
The formal discovery process usually begins shortly after you and/or your spouse initiate legal proceedings and it can continue until you settle your case or reach the pre-trial discovery deadline, whichever occurs first.
Documents and testimony that are obtained through discovery may be used to make informed settlement decisions or to prepare for trial. Or they may be used after divorce to gather relevant information about ongoing issues like spousal support and child support.
In discovery any relevant information that may be admissible at trial may be requested. This includes, but is not limited to, bank statements, pay stubs, mortgage applications, bonus reports, life insurance disclosures and property deeds.
The Five Discovery Tools
Five discovery tools are commonly used by lawyers and self represented parties to gather records and testimony. These tools include Releases, Subpoenas, Requests, Interrogatories and Depositions.
Releases are legal documents that authorize third parties or organizations to release or produce documents and records. Releases are commonly used when spouses cannot find or do not have necessary information such as bank statements or tax returns.
Agencies such as the IRS have standardized forms like IRS form 450, which may be used to request copies of tax returns on file.
If yours is an amicable divorce and your spouse is freely providing information, your spouse may agree to sign Releases and expedite the collection of missing documents and records. If yours is contentious case, Releases also may be used but you may need to ask a judge to order your spouse to sign the Releases if he or she will not do so voluntarily.
Subpoenas are legal documents that order a witness to appear or a custodian of records to produce information on a particular date and time. Subpoenas are usually served by a sheriff or process server well in advance of the deadline for the witnesses’ appearance or production of documents.
Any person or entity that receives a Subpoena must comply unless a valid legal excuse exists. Failure to comply is punishable by law and may result in a contempt of court finding.
Subpoenas are commonly used to obtain documents and/or testimony from a third party when a spouse refuses to sign a Release and/or fails to produce requested information pursuant to a formal request.
The costs associated with preparing and serving Subpoenas can be reasonable unless the third party or entity charges significant fees for the production of the information requested (i.e. a one dollar fee for each page produced plus a twenty-five dollar research fee.)
Subpoenas should be issued during the early stages of an adversarial divorce or legal separation because it can take some time for a third party or entity to produce the information or witness requested.
Requests are usually standardized formal written requests that ask a spouse to produce relevant documents or admissions. Requests can be very lengthy and may 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 established by state law, however it is not uncommon for responses to be late due to delays caused by third parties. State law and local rules also dictate the format and content of the responding party’s responses to requests.
A person may 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 but made anyway because it is common for friendly divorces to turn sour. If yours is a contested case, Requests are usually the first formal discovery step taken in attempt to obtain necessary information. If you make a Request and your spouse fails to comply, you may file a Motion to Compel production and a Judge may order production in response.
Interrogatories are formal written requests for the production of truthful 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.
In California there are two types of Interrogatories: Form Interrogatories and Special Interrogatories. Form Interrogatories are just that, standardized forms with a fixed list of Interrogatories that a spouse may request from his or her spouse.
Special Interrogatories are specialized requests that are unique to the facts in a case.
Deadlines for responding to Interrogatories are established by state law and a spouse must timely provide written answers made under oath and subject to penalty of perjury. State law and local rules also establish the format and content of the responding party’s response. Interrogatories are usually open ended questions but they 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 is 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 used in divorce depends on the facts and circumstances of a case. If your marriage was of short duration, did not involve the acquisition of any joint assets or debts, and you were fully aware of each others’ financial circumstances, you may not need to conduct any formal discovery. Releases and the informal exchange of information may be sufficient.
If, on the other hand, you are a stay at home mom without any knowledge of your spouse’s income, assets and/or debts, you may need to conduct some formal discovery before making any legally binding decisions or going to trial. If your spouse is forthright and you are fairly confident that he or she is not hiding anything, Requests, Releases and Interrogatories may suffice. If you do not trust him you may choose to use the entire arsenal of discovery tools available to you.
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