Not all Family Law cases require financial discovery. However, there are many cases in which a spouse must take the extra step of investigating all financial issues of a marriage or registered domestic partnership to obtain sufficient information to negotiate or litigate. In these matters, there are several methods by which you can seek much needed information and documentation to get an accurate financial picture.
When should you consider propounding discovery?
While you should be very cautious about when/if discovery is necessary in your case (it can get very expensive and increase the level of animosity between litigants), if some or all of the below questions apply to your case, you will want to consider strategizing a plan for discovery.
Did your spouse maintain control over all of the family finances?
Did you keep separate accounts during your marriage?
Is your child’s father/mother refusing to provide income or asset information?
Do you need more information to determine if joint earnings were contributed to your ex’s separate estate?
Did one or both of you own a business during the marriage?
Is there a question about whether an asset (e.g. retirement account) was liquidated during the marriage and where those funds went?
Is more information necessary to determine whether an asset or debt is wholly or partially community property?
Do you need to determine the value of certain assets or account at your claimed date of separation?
Do you need more information on your ex’s earnings history to help create a strategy for seeking child or spousal support?
Is one spouse claiming that they used a gift or inheritance to purchase property during the marriage?
Does your spouse own in part or whole a business entity such as a corporation or LLC?
What if you do not have enough money to conduct discovery?
If a party doesn’t have enough funds to undertake discovery, they may want to consider seeking an order from the court for payment of lawyer fees and costs from joint funds or from the separate property of the other spouse. The Family Code authorizes awards of fees and costs necessary to permit a party to litigate properly in certain circumstances. Additionally, if you propound discovery and your spouse does not thoroughly respond, you may have a cause of action against them for sanctions (mandatory fees and costs).
Where do I start?
It is very important to develop a discovery plan and strategy before you begin. The best discovery plans progress over time and combine informal disclosure and formal discovery methods. Sometimes it is easier to get needed information by subpoenaing documents. Other times it makes more sense to ask your spouse specific written questions that must be responded to under the penalty of perjury.
What type of discovery should I consider?
There are several types of discovery sanctioned by the Family Code and enforced with the Civil Code of Procedure. Below are some examples of different forms of discovery.
Family Law Form Interrogatories are an easy and inexpensive tool that may be used to obtain some information necessary to your case. This form can be found here.
Document Inspection Demands are a way for your to obtain specific documents.
Deposition Subpoena’s can be used to require a party or witness to submit to an ‘in person’ interview in front of a court reporter. You may also request that party to bring certain documents with them.
Subpoenas are a way to obtain documents directly from a third party institution, employer or witness.
What else should I consider?
It’s important to note that discovery is very procedural – failure to follow the code may result in a waiver of the right to obtain much needed information.
**Please note that this blog pertains to existing California law and is meant for informational purposes only. Please do not make decisions that will affect your future based on things you’ve read on our website. Instead, consult with a Certified Family Law Specialist, like those of LFLG – or any other you prefer – but be sure to seek out sound legal advice that pertains specifically to the facts of your case.