Some think of divorces as simply a lawsuit between spouses or domestic partners, but there are vast differences. One of those differences is in discovery. “Discovery” is the legal process where the parties obtain information from one another or third parties. Discovery occurs before trial and can start as soon as 10 days after your spouse is served the Petition.
What makes discovery different in California divorces, starts with the fiduciary duty both spouses owe toward each other. Family Code section 721(b) directs that spouses have a duty of the highest good faith and fair dealing with each other and will not take unfair advantage of the other. In normal litigation not everyone owes a fiduciary duty to the other party. In California divorces, spouses always do. This means that from the outset, spouses have a duty to disclose all of their financial information to their spouse.
This is why California law requires parties in a divorce to exchange “Declarations of Disclosure” per Family Code section 2100 et seq. The Declarations of Disclosure are financial disclosures made under oath to the other party. They serve as the way spouses disclose the complete picture of each party’s finances. So, the spouse who has racked up some credit card balances without telling the other spouse must disclose those credit cards – even if the credit card is only in that spouse’s name. So, the set of golf clubs hidden at the office and put on the card need to be disclosed. It also means that if there’s a bank account you’ve been keeping from your spouse, the account needs to be disclosed. And, this requirement extends to separate property accounts and liabilities. The money you inherited but didn’t tell your spouse? Yes, that has to be disclosed as well, because spouses have a fiduciary duty to each other.
The Declarations of Disclosure include an Income and Expense Declaration and a Schedule of Assets and Debts. These are not filed, but are Declarations signed under oath stating you have served the other party the Schedule of Assets and Debts and the Income and Expense Declaration. Once filled out, it is very important to look at what is disclosed and what may be missing. Both areas will be critical to settlement negotiations and trial.
And, the Declarations of Disclosure are not just served once. They are exchanged at the beginning of the case and near the end. The Declarations of Disclosure that are exchanged at the beginning of the case are called the Preliminary Declaration of Disclosure and the Final Declaration of Disclosure is the name those exchanged near the end. The Preliminary Declaration of Disclosure must be served by the Petitioner within 60 days of filing the Petition, and the Respondent within 60 days of filing the Response. The Final Declaration of Disclosure can be waived, but not the Preliminary Declaration of Disclosure. It is important to consult with an attorney before waiving the Final Declaration of Disclosures.
The consequences for failing to disclose everything can be severe — more severe than the usual discovery abuse penalties. If you fail to comply with Family Code section 2100 disclosure requirements, the Court “shall” impose sanctions. Marriage of Sorge (2012) 202 Cal.App.4th 626. This means courts are required to order sanctions if you fail to comply. For example, you can be ordered to pay all of your spouse’s attorney’s fees for failing to properly disclose. Id. In one case $250,000 in sanctions and $140,000 in attorney’s fees were assessed against a husband for egregiously failing to disclose. Marriage of Feldman (2007) 153 Cal.App. 4th 1470.
Discovery in Fresno Divorces Procedure
Beside the Declarations of Disclosure, the regular discovery tools are available for each party. Interrogatories, Depositions, Demands for Inspection/Requests for Production of Documents, Requests for Admission, and Subpoenas can be used to uncover the other party’s financial picture.
Interrogatories are written questions posed to the other party that must be answered under oath. A Deposition is the taking of one’s testimony out of court. The process is very similar to taking the witness stand, but in depositions the answers are usually put in written form and used at trial.
Demands for Inspection or Request for Production of Documents formally asks the other side for documents. Because most documents should have been exchanged in the Preliminary Declaration of Disclosure, Demands should be specific and not repeat the topics covered under the Declarations of Disclosure.
Requests for Admission are statements that the other party must either admit or deny. Requests for Admissions are used to get the other party to admit to the truth of certain facts or genuineness of documents. They are also used to get the other party’s opinions on the facts or a legal issue relevant to the case. They are not widely used in divorce cases, but if used correctly they can be an effective tool to narrow issues.
Subpoenas are one of the most effective tools to get information and documents. They are used to get someone who is not a party to either show up at trial or produce documents. And, a person or entity receiving a subpoena is legally required to respond to the subpoena. The problem with subpoenas is that properly issuing a subpoena is very complicated. Also, subpoenas can only be issued by an attorney or the clerk of the court. It’s important to seek the advice of an experienced family law attorney to determine whether you need a subpoena and, if so, to properly execute one.
When dealing with discovery, you must keep in mind the fiduciary duties and the duty to disclose. Judges do not look kindly on withholding information and discovery abuse. Experienced Family Court Judges will readily hand out sanctions for discovery abuse. Because along with the sanctions for discovery abuse outlined in the California Code of Civil Procedure, Judges can issue sanctions under Family Code 271. Family Code section 271 allows a Judge to “base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” So, if you want to hide, dodge, or try to manipulate the process by stalling or withholding beware Family Code 271. Judges will award attorney’s fees for parties who “frustrate” the promotion of settlement. On the other hand, if the other party is abusing discovery or frustrating cooperation, you have a powerful tool that should be utilized to get information and correct bad behavior.