By: Eric Proos
Are you going through a divorce? Has your spouse been the one to manage the finances during the marriage? Does your spouse have a business that you are not involved with? Are you worried about being able to obtain financial documents from your significant other during the divorce? If you answered yes to any of these questions, then this blog will point you in the right direction.
Discovery provides both parties an avenue to obtain potentially relevant documents. It is necessary to conduct discovery to obtain any evidence that is reasonably calculated which may lead to relevant information. This post will discuss the different types of discovery that may need to be conducted during your divorce proceeding. It must be noted that this blog will not address the fiduciary duty during divorce proceedings that is imposed on both parties through California law.
Discovery is a stage of any litigation where parties seek relevant information that will support or hinder their case. This takes the surprise element out of litigation. When conducting discovery you or your lawyer, must abide by a number of discovery specific laws, which I’ll cover below.
One form of written discovery is Form Interrogatories (FL-145). Form Interrogatories are approved by the Judicial Counsel, meaning they are questions that abide by the discovery rules. These interrogatories usually seek to obtain basic background and financial information. They can be very useful when your significant other has controlled or managed the finances throughout the marriage.
Another form of written discovery is Special Interrogatories. Unlike Form Interrogatories, Special Interrogatories are not generated or approved by the Judicial Counsel. Special Interrogatories must abide by a number of discovery laws, provide precise definitions of key terms, and must be carefully crafted in order to elicit the response sought (this type of discovery can take a lawyer years to master. It is smart to contact a lawyer during the discovery stage). Special Interrogatories can seek anything from people’s names that may have relevant information, all facts surrounding a relevant situation, titles and dates of relevant documents, and additional financial information that is not addressed in the Form Interrogatories.
Discovery law has placed a limit on the number of Special Interrogatories that may be propounded on the opposing party, but there is a way around the limitation. Contact our office to discuss the need for additional Special Interrogatories and how we can help you get the most out of the discovery process.
The third type of written discovery is Request for Production of Documents. Once again these take time to master to get the exact information you are seeking. Similar to Special Interrogatories, Request for Production of Documents must abide by discovery laws and provide definitions in order to survive objections. In a divorce proceeding a party may request, any and all bank records during the time of the marriage, attorney invoices during the divorce proceedings, business records, real estate records, all tax returns, among other things.
Another type of written discovery is Request for Admissions. Similar to Special Interrogatories, Request for Admissions must abide by a number of discovery laws, provide definitions, and be carefully crafted. If a Request for Admission is answered in the affirmative, then the party is locked into that answer and it can be used as evidence in future proceedings. Request for Admissions must be crafted with care and used wisely.
Along with the discovery discussed above a party may subpoena the opposing party’s documents from banks, business, and etc. To do this the party seeking the documents must abide by state law when providing notice. Even though subpoenas are an extra cost they can be beneficial and provide a complete record, as the opposing party may not have all the documents from years ago. If you think serving subpoenas would help your case, then please contact our office as there are a number of documents that must be served at certain times to be valid.
As you may have concluded, discovery is very complicated and is best handled by an attorney. This blog only discussed a broad overview of written discovery, and did not discuss the possible motions and hearings that come into play during discovery. Overall, discovery is best handled by an attorney as we know the ins and outs of all types of discovery and can conduct it effectively and within the limits of the law.
This blog is in no way legal advice, and if you are headed to trial, or would like more information on discovery or assistance in the discovery stage of your case, please contact our office.