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Divorce Disclosures and Discovery

Information gathering in divorce, legal separation, and nullity cases is of paramount importance to obtaining a fair and equitable result.  This information comes from mandatory financial disclosures and discovery during a case.  It is crucial to understand the applicable provisions of the Family Code and Code of Civil Procedure when trying to obtain information in a divorce case.  That is where our expert advice and guidance comes into play.  We have extensive knowledge and experience about how financial disclosures work, what to do when a financial disclosure is incomplete or inaccurate, and how to conduct discovery.

DIVORCE DISCLOSURES – THE “PRELIMINARY” AND “FINAL” DECLARATIONS OF DISCLOSURE

In every single divorce case in California, parties are required to submit detailed financial statements to the other side within the early stages of the case.  These disclosures must be completed within 60 days of the filing of the case by the petitioner and within 60 days of the filing of the response by the respondent.  The concept and reasons for having both parties submit such disclosures early on in the case is to help put “all the cards on the table,” so to speak, so that the parties can more quickly and efficiently reach an agreement to resolve their case entirely.

Is the Preliminary Declaration of Disclosure mandatory?

Yes.  Every person going through a divorce in California, even celebrities, must prepare and serve their Preliminary Declaration of Disclosure on the other party or their counsel of record.

Are the Declaration of Disclosures filed with the Family Court?

No.  Declarations of Disclosure are only “served” on the other party or his or her attorney; they are not filed with the court.  The form called “Declaration Regarding Service of Declaration of Disclosure” is filed with the court, however, which only verifies that the disclosures were served.

Are Preliminary Declarations of Disclosure required in annulment cases?

In an annulment case, the petitioner is required to prepare and serve a preliminary declaration of disclosure on the respondent.  The respondent does not have to complete such a disclosure.

What forms comprise the Declaration of Disclosure?

The declaration of disclosure consists of three forms – the “Preliminary Declaration of Disclosure” checklist form, which contains the several listed items required, the “Schedule of Assets and Debts,” (SAD) and the “Income and Expense Declaration” (IED.)  The Declaration of Disclosure form references the SAD and IED and also requires the person completing the form to provide the last two years’ tax returns and declare under oath whether any business opportunities arose during the marriage and whether any other obligations arose during the marriage that are not specifically referenced on the other forms.  These “additional” disclosure items are not part of the forms and require a separate, written statement.

What information needs to be included on the Schedule of Assets and Debts?

The Schedule of Assets and Debts is a list of exactly that – assets and debts.  The form is four pages long and requires the person completing the form to provide full information for any items that they have an ownership interest, even if their names are not on the asset or obligation.  They must disclose interests in real property, personal property including electronics, furniture and artwork, jewelry, vehicles, recreational vehicles such as boats, bank and investment accounts, retirement accounts, pensions, life insurance proceeds, cash including items in a safe deposit box, business interests, stock, mutual funds, and all debts including student loans and credit cards.  Importantly, supporting documents must be provided as designated on the form, including bank statements, property deeds, credit card statements, investment and retirement account statements, and so forth.  These are just a “snapshot” of the assets and debts a person has, however, because the SAD form only requires current statements.  A common problem is when a person asks about money transferred from a period of time before the SAD is completed.  Such information can only be obtained through discovery.

What information is included on the Income and Expense Declaration?

The IED is a four page form also, that demands current information for a party’s income and expenses.  The form requires disclosure of the declarant’s employer, current salary or wages, tax filing status, education, vocational training and licenses, overtime, commissions and other employment income and benefits, rental property income, investment income, deductions such as medical insurance premiums and union dues, net value of all real property and liquid assets, all monthly expenses, attorney fees incurred in the case, and information about what the “timeshare” is between the parents if children are involved.

DISCOVERY IN DIVORCE – WHEN ADDITIONAL INFORMATION IS NEEDED

Discovery means “information gathering” and is an extremely useful set of tools to gain information and an advantage in a divorce, annulment or legal separation case.  Our attorneys use approved methods of discovery very often and we are experts in propounding and responding to discovery.  We have seen every discovery issue imaginable in a divorce case and we are available to talk to you about discovery and information needed for your case today, all you need to do is call us or send us an email on our Contact Us page.

What methods of discovery are available in San Diego divorce cases?

Discovery is governed by the California Code of Civil Procedure, which applies to all divorce cases as well as civil cases.  The discovery options available to divorce and other family law litigants, including parties going through a paternity case, may include:

  • Demand for production of documents and tangible things: When a Demand for POD is served, it usually requests between 20 and 60 sets of documents from the other party, ranging from checking account statements to documents relating to life insurance.  The Demand can be narrow in scope or very broad, depending on the need for information.
  • Special interrogatories: These are specially drafted questions that the opposing party has to answer under oath.  Any relevant question can be asked and the responding party has to provide a truthful response.  There is a limit to the number of interrogatories that can be asked, however.  A maximum of 35 interrogatories is allowed, unless it is shown that additional questions must be asked and therefore “good cause” exists for the responding party to answer.
  • Form interrogatories: This form requires the opposing party to provide very basic information that is relevant to the case, such as their name and address, employment, whether they pay or receive support, whether they are claiming any credits or reimbursements from the other party, what information they intend to rely on at trial, and so forth.
  • Requests for admissions: These are specially drafted “admit” or “deny” questions that the opposing side must answer under oath.  For example, “Admit that you earn at least $100,000 per year in total salary and commissions through your employment.”  These requests for admissions can relate to anything that is relevant to the divorce case.
  • Demand to inspect property: With 30 days notice, either party can demand to inspect the property of the other party (includes physically going to a real property or looking at personal property in person.)
  • Physical examination: Upon request, either party may request that the other party submit to a physical examination.  This issue arises most often in cases where spousal support (alimony) is an issue and one party claims to have a physical ailment or disability that negatively affects his or her ability to work.
  • ESI: ESI means “electronically stored information.”  This is a recent advent of the law and allows divorcing litigants to obtain information contained only in electronic format, such as text message history in a Smartphone, emails, calendar items, files including deleted or hidden files, and so forth.  This area of the law is extremely complex and you need to hire an attorney if you want ESI or if you have been served with an ESI demand.

What are the common objections to discovery?

There are extensive and numerous grounds to object to discovery propounded by the opposing side in a San Diego divorce case.  It is important to remember that discovery objections should be made timely, which means no later than at the time of the response to a request, demand or question.  Otherwise, the right to object is lost.  Objections do not need to be made sparingly.  Sometimes, demands or questions from the other side will be the subject of numerous objections, not just one objection.  Common objections may include:

  • Overboard and lacks relevance: Discovery must be relevant to the case.  This means that in a divorce case, if one party seeks discovery on the issue of whether the other spouse was having sexual relationships after the parties’ separation, the responding party may simply object on the basis that the question or demand lacks relevance and they may refuse to answer.  Similarly, a question may be overly broad in that is lacks the “narrow” relevance that one may expect as reasonable.
  • Burdensome and oppressive: Sometimes discovery demands are extremely annoying and burdensome, and the responding party may object accordingly even if the information may bear some relevance.  For example, if a party requests twenty years of bank statements from the other party, the responding party may choose to object based on the fact that to gather twenty years of bank statements would take an enormous amount of time and effort (notwithstanding the fact that usually bank records only go back approximately 7 years.)
  • Compound question: A question that has multiple parts is not permissible.
  • Vague and ambiguous: Questions that lack specificity may not be allowed, because of the difficulty it would cause the responding party to understand exactly what is being requested.  Questions also need to be specific as to the time period they refer to.  For example, the question, “Where did you go to school” is very vague and ambiguous because it could refer to a number of different schools that the responding party attended at different time periods.