Understanding the Discovery Process and Your Rights

Posted on January 12, 2014 in Assets

Under California law, the Family Court is required to divide community assets and community liabilities equally¹ between the parties, unless the parties have entered into a property settlement agreement that sets forth a different arrangement. A San Diego family law attorney must identify and place a value on all community assets and liabilities. If this information is suspect, various procedures of investigation are available under the laws that are commonly called “discovery.”

Common Forms of Discovery

1. Depositions are question and answer proceedings taken in an office away from the court. The witness may be anyone with relevant information for the case. Most commonly the witness is a party to the case. The witness is subjected to cross-examination under penalty of perjury. The deposition is one of the quickest and most efficient methods of preparing a case. A certified shorthand reporter types up a record of the session. The testimony contained in the booklet is used in court.

• Form Interrogatories are standardized questions that are used in almost every case. These are questions formulated over twenty years ago by the Judicial Council to try to get the information on the financial foundation of the marriage out in the open.

• Demand For Production of Documents, formerly known as the “Request for Production of Documents” is a standardized laundry list of bank statements, tax returns, credit card statements, deposits, and other financial papers that are required to be produced between the husband and wife when this “Demand” is served. A much more comprehensive list is used for cases involving a family business.

• Records Depositions are not a deposition in the sense described above. Only a copy service attends the proceeding by carrying a portable copy machine out to the location of the records. They make certified copies that may be used in court.

• Subpoenas are documents issued by law offices to obtain documents and other “things” or people that might have relevant information involving the interests of the parties to the case.

• Experts may be designated by the court or by the individual parties to help evaluate an asset or a contention of one of the parties. Common examples of experts are appraiser, accountants, vocational evaluators, actuaries, and medical doctors and psychologists.

• Special Masters may be designated by the court or may be agreed upon by the parties. The role of the special master is that of an investigator who also evaluates evidence and prepares a report for use in court. Special Masters are thought to be independent in their work. They may be very useful in shortening the length of time in trial or the length of an evidentiary hearing.

Comparing Discovery to Disclosure

Historically, the laws of discovery are much older than the law of disclosure. When discovery procedures are properly used, the person responding is compelled to respond under penalty of perjury and under threat of monetary penalty. Skillful questioning under cross-examination not only commits a witness to a story but it uncovers many details or leads that produce a successful conclusion.

The law of disclosure puts an affirmative obligation on each party to unilaterally produce financial information. It is not as thorough an obligation as that which is produced with form interrogatories and a one-hour deposition. Disclosure does little or nothing to reveal child sharing plans. Although a preliminary disclosure is made under penalty of perjury, the law allows the amendment to preliminary disclosure later in the case. Thus, the preliminary disclosure may not be a source of reliable information in some cases.

Accepting a settlement based upon disclosure alone where the conclusion of the case accepts a “Waiver of Final Disclosure” may be dangerous if the case is concluded without basic discovery. Both the entry of judgment based upon the waiver of final disclosure or based upon disclosure could mean that a party to the divorce is stuck with the deal even if they realize later that an asset was undervalued or mistakenly characterized as a non-marital asset.

Balancing the Use of Discovery with Disclosure

The degree to which discovery is necessary in a case will depend on the complexity and size of the estate and the obligations. It will also depend upon the type of problem between the parties. For example, if the husband and wife cannot agree on child sharing or who should be the primary parent, discovery may become critical. If one party has been primarily involved in running a family business or primarily responsible for paying family bills, discovery may be more important to the spouse who needs the information.

Both discovery and disclosure may be used to build trust between the husband and wife at a time when trust is critical. Discovery may be used to compel communication when emotional pulls hamper communication. Early and thorough disclosure leads the receiving party to believe that the other spouse is not hiding money. When disclosure is forthright and the needs of the parties to discovery are met, then the case may proceed to settlement and a knowledgeable waiver of the Final Declaration of Disclosure.

¹There are many complex exceptions to this general rule including rights to reimbursement and rights to credits.