Tools Available to Gather Information in a Divorce
October 13, 2022 | Jason C. Brown
Family court cases tend not to settle for one of two reasons: (1) the parties are not emotionally ready to resolve matters; or (2) a lack of information. Sometimes, a divorce litigant will try to conceal assets or hide information from the other side. They rarely succeed at doing so, given the number of tools divorce attorneys have at their disposal to gather information.
The process of gathering information in any court case is called “discovery.” There are special rules of court procedure that grant lawyers the ability to obtain discovery.
We often start by sending a set of interrogatories to the opposing litigant. An “interrogatory” is a fancy word for “question.” Answers to our questions must be provided under oath, in writing. The most common interrogatories involve inquiry into a litigant’s income and work history, bank accounts, investment accounts, retirement accounts, credit cards, business records and monthly budget.
In addition to serving interrogatories, we will submit a request for production of documents to the other side. They are obligated to produce, or make available for our inspection, various records, including tax returns, account statements, and paystubs.
If the responding party fails to produce the requested information in a timely manner, we can file a motion to compel production of the requested information with the court. Judges don’t appreciate non-cooperation and will often award the requesting party the fees and costs incurred as part of the motion.
If a party is still non-compliant, our lawyers have the authority to subpoena records. Rather than waiting for the non-responding party to produce the requested information, we can compel a bank, creditor, employer, or stockbroker to provide documentation to us.
Beyond written discovery, the court rules permit us to take the other party’s deposition. We can compel them to come to our office, sit in a conference room, be sworn, and answer our questions before a court reporter. Their testimony, in the eyes of the judge, is the same as courtroom testimony. A finding of perjury can follow if a deponent is not candid.
Depositions are useful to get someone to commit to a particular position on an issue or provide information in real time, without forethought. At the same time, they can be quite expensive. Consequently, family court lawyers rarely take depositions.
Finally, we have the ability to demand an inspection of property. If one party is unwilling to have an asset appraised, we can compel them to permit our lawyers and experts to inspect and value the property.
Keep in mind, in most family court cases we conduct discovery on an informal basis. Costs are kept to a minimum. Both parties to the dispute are generally in touch with the facts, unlike, for example, a lawsuit among two corporations. The lawyers will work together to ensure that an ample set of records are exchanged.
Even if discovery is conducted informally, we may still opt to have the other side execute a sworn statement of income, assets, and liabilities. That way, if the litigant is concealing something, they are hiding it not only from our client, but also the judge.
No one expects the party to a divorce to negotiate blindly. Once we have an opportunity to consider all of the pertinent information, we can advise you on how to move forward.