Financial discovery is sometimes necessary to obtain sufficient information for negotiation or litigation. It involves investigating all financial issues of a marriage or registered domestic partnership for these purposes.
Not all family law cases require financial discovery. If your case requires it, however, there are several methods by which you can seek much-needed information and documentation to get an accurate financial picture.
When should I consider financial discovery?
Financial discovery can get expensive and can fuel animosity between litigants. Therefore, you should proceed with caution and put a lot of thought into it first.
However, if you answer "yes" to some of the following questions, you will want to consider strategizing a plan for discovery.
- Did your spouse maintain control over all the family finances?
- Did you keep separate accounts during your marriage?
- Is your ex refusing to provide income or asset information?
- Do you need more information to determine if joint earnings were contributed to your ex's separate estate?
- Did one or both of you own a business during the marriage?
- Is there a question about whether an asset (for example, a retirement account) was liquidated during the marriage and where those funds went?
- Is more information needed to determine whether an asset or debt is wholly or partially community property?
- Do you need to determine the value of certain assets or accounts at your claimed date of separation?
- Do you need more information on your ex's earning history to create a strategy for seeking child support or spousal support?
- Is one spouse claiming they used a gift or inheritance to purchase property during the marriage?
- Does your spouse own, in part or whole, a business entity such as a corporation or LLC?
What if I do not have enough money to conduct discovery?
If a party does not have the funds to pursue discovery, they may want to consider seeking an order from the court for payment of lawyer fees and costs from joint funds or from the separate property of the other spouse.
Most states have divorce laws that authorize awards of fees and costs necessary to permit a party to litigate properly in certain circumstances. Additionally, if you propound discovery and your spouse does not thoroughly respond, you may have a cause of action against them for sanctions (mandatory fees and costs).
How do I start developing a discovery plan?
It's important to develop a discovery plan and strategy before you begin.
The best discovery plans progress over time and combine informal disclosure and formal discovery methods. Sometimes, it is easier to get needed information by subpoenaing documents. Other times, it makes more sense to ask your spouse specific written questions that must be responded to under penalty of perjury.
What type of discovery should I consider?
Several types of discovery are sanctioned by the Family Code and enforced with the Civil Code of Procedure. Below are some examples of different forms of discovery.
- Interrogatories are where you request written information from your spouse about various divorce-related issues like what bank accounts or retirement accounts exist(ed). This form can be found here.
- Document inspection demands are a way for you to obtain specific documents.
- Deposition subpoenas can be used to require a party or witness to submit to an "in-person" interview in front of a court reporter. You may also request that the party bring certain documents with them.
- Subpoenas are a way to obtain documents directly from a third-party institution, employer, or witness.
What else should I consider?
It's important to note that discovery is very procedural. Failure to follow the code may result in a waiver of the right to obtain much-needed information.
**Please note that this blog is meant for informational purposes only. Do not make decisions that affect your future based only on things you’ve read here. Instead, we invite you to consult with one of the knowledgeable and experienced CDFAs at Hello Divorce.
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