The Fresno divorce process can be daunting when a divorcing spouse first encounters it. Most people have never been in litigation and may be dealing with the court process for the first time with their contested divorce proceeding.
Litigation refers to the period of time between the filing of the initial divorce and a final hearing or trial.
Discovery is the information-gathering portion of litigation in which the parties obtain information from the other party or third parties about their spouse’s assets, other financial matters, and issues of custody. Any necessary motions or legal procedures are also part of the litigation process. Litigation is usually initiated when there is a contested issue in your divorce case such as the amount of spousal support, hidden assets or income, or child custody. The purpose of the discovery and litigation process is to gather enough information and evidence to give a full picture of the issues in your case and to prepare your case for hearing or trial.
Discovery can be informal or formal. An example of informal discovery would be when you or your attorney simply asks the opposing party for the information on the other party’s finances or the value of an asset. Some examples of formal discovery are depositions, document requests, and subpoenas.
Here are the major components of discovery and litigation that you can expect to encounter in a contested family law case. Each of them are part of the formal court process.
The deposition. A deposition is a legal procedure in which one of the parties to the family law case or a third party gives sworn oral testimony. An attorney for either party asks the deponent questions about the family law case. That deponent’s testimony is put into written form and can be used as evidence at any hearing or trial.
Written discovery. Written discovery refers to the process where one party requests information, facts, and documents from the other. That is, when one party sends a formal written request to the other party for those facts and documents. Written discovery is usually comes in the form of document requests, interrogatories, and requests for designation of experts, if necessary. An example of written discovery would be when the opposing party asks for documents in your possession. When you receive a discovery request, you usually have thirty days to respond under oath to each question or request to the best of your ability.
The subpoena. A subpoena is a request that a party or third party either attend a hearing, or produce documents on a specific date. For example, if you wanted to obtain information from a financial institution or a real estate company, it would be appropriate to send a subpoena for all bank statements for a specified period of time or documents pertaining to a real estate transaction. You would have the option of having the subpoenaed party produce the documents before a hearing or trial so that you can review them. Subpoenas are also used to have a witness or party appear at hearing or trial. Upon receipt of a subpoena, the subpoena recipient has the right to object to the subpoena. The subpoena recipient usually has a specified period of time to respond to a subpoena or must otherwise appear. It is always best to abide by the terms of a subpoena unless there is a legal reason not to or you are excused. Subpoenas carry with them the power of the court to enforce that subpoena if a person fails to abide by the subpoena.
Designation of experts. It is often the case in contested family law proceedings that the court or a party will require the assistance of an expert on a particular issue. That is a person who is a recognized expert in their field, such as real estate or property valuations, and who can give testimony or evidence that the average person cannot as to a particular issue in your case. You have the right to hire an expert and obtain an expert’s report or other evidence that will be helpful in proving the issues in your case. If you do hire an expert, you would be required to notify the opposing party well ahead of the hearing or trial date.
What if the opposing party does not cooperate? There are instances in family law litigation in which a party or a third party does not cooperate with the discovery or litigation processes. An example would be if you send a document request to your spouse and they refuse to produce documents or tell you their location. Another example would be if you subpoena a financial institution to produce documents and they do not respond. The litigation process allows you to file a motion with the court to enforce your request. If you prevail or win, the non-cooperating party will be ordered to comply with your discovery request. You can also request attorney’s fees for the time and expense incurred in enforcing your discovery request. If the non-cooperating party still does not cooperate, the court can prevent the opposing party from presenting specific evidence at hearing or trial. That is, if you cannot present evidence on an issue at hearing because of the fault of another, the opposing party would not be allowed to present that evidence at hearing.