Discovery - There's a House in the Bahamas!!!?
To continue with Divorce 101. The Complaint and Answer are filed. Now it's time for discovery.
The judge will enter a Case Management Order. The Order will be developed through either a hearing, a conference or submission of a Consent Order by the attorneys. In most cases the Order is entered into by consent as there really isn't anything to fight over.
The Order sets out the time lines for the case, what discovery the parties will swap, and experts if needed. Discovery is all the information needed for the case. Be prepared, this can be massive and involve a lot of leg work. Both parties may have to swap 5 years of bank records. Assets may need to be appraised. Credit card records for years may have to be produced including exactly what was purchased. You may have to get a social security statement and/or pension statement. If there's a small business, years of business records may have to be coughed up. Courts make decisions based on proof, if you are making a claim or defending against one, you have to have the proof. It's not good enough to get on the stand and tell the judge you're wife ran up the credit card bills buying thong underwear for her boyfriend. You have to show the court the receipts or credit card statements showing the purchase and then you have to prove that the shorts weren't for you, you sexy devil.
Discovery may also include interrogatories, depositions and notices to produce. Interrogatories are sets of questions for the other party to answer. Generally interrogatories are incredibly lengthy and comprehensive, 40+ questions, 20+ pages. Usually half of the questions are already answered or don't apply so they're not as difficult to complete as you may think on first glance. Get them done as soon as possible. The notice to produce is usually sent with the interrogatories. It is a demand for certain records. Most of the time disclosure of the records is already ordered in the Case Management Order. The notice to produce puts the other party on notice that you are serious about getting these records and gives you an additionally zing if you don't get the records and have to file a motion to get them. Depositions are when the other attorney gets to question you about anything pertinent to the case their little heart desires. It is not like a hearing, there's a lot of latitude as to what they can ask. Just because they ask it doesn't mean it will be admissible in Court. Depositions are not real common in divorces but you will see them when someone is refusing to cooperate with discovery or there are complex and/or fuzzy issues.
In New Jersey you will have to file a Case Information Statement. This sets out basic information about yourself and pretty detailed information about your finances. Income, assets, debts and your budget are all included. The Case Information Statement is a royal pain to fill out but you must fill it out and file it with the Court. It is the basic document from which flows the river of divorce.
You must cooperate with discovery. I will get a request for someone's bank statement. My client will tell me it's none of their business. Wrong! It is their business and if they have to get the Court to make you give it to them, you will now be paying your ex-to-be's legal fees for the motion too. Full financial disclosure is a requirement. If someone refuses or evades disclosing something it can come back to bite you later when your settlement or judgment is overturned. Hiding assets or information is a sure way to get yourself in trouble and possibly even find yourself with a really bad judgment.
Cooperating with discovery also keeps the cost of your divorce down. If both parties are swapping all the information voluntarily it makes the lawyers' jobs easier and the billable hours less. If you can get the information yourself, do it. I'll ask people to get a pension statement. Their attitude is that's what they're paying me for. OK, have it your way. Charge for you to call human resources and get them to send it to you-$0. Charge for me to get a release from you, mail it with a cover letter to human resources requesting your pension information-your first born. If you want to pay me to do something you can easily do, you're just stupid and deserve to pay for it.
As stated earlier, even in family court, proof is needed. My clients really have trouble grasping this concept. This applies to every issue, not just the financial ones. If you want to claim that your spouse is a bad parent you will have to prove it. Your say so isn't enough. You may need an expert to complete a custody evaluation. If you want to bring up specific incidents you may need to call witnesses to the incidents or have medical reports. If you want to claim that your spouse didn't contribute financially to the marriage you have to prove it. You will need to show the paper trail of the finances. You may also have to prove that there wasn't a good reason for your slacker spouse to not fork out any money during the marriage. If you supported your doctor husband-who-has-now-run-off-with-nurse-Nancy through med school, you will have to show the paper trail of your finances during that time. You may be awfully cute and sincere, but that ain't enough for the judge to rule in your favor.
Discovery is the foundation of your case and is actually fair too complex to fully explain in this crash course. Bottom line, if your lawyer asks for something, there's a reason, give it up with a smile on your face and a song in your heart.
Next up, settlement negotiations: theirs, mine and mine.
The judge will enter a Case Management Order. The Order will be developed through either a hearing, a conference or submission of a Consent Order by the attorneys. In most cases the Order is entered into by consent as there really isn't anything to fight over.
The Order sets out the time lines for the case, what discovery the parties will swap, and experts if needed. Discovery is all the information needed for the case. Be prepared, this can be massive and involve a lot of leg work. Both parties may have to swap 5 years of bank records. Assets may need to be appraised. Credit card records for years may have to be produced including exactly what was purchased. You may have to get a social security statement and/or pension statement. If there's a small business, years of business records may have to be coughed up. Courts make decisions based on proof, if you are making a claim or defending against one, you have to have the proof. It's not good enough to get on the stand and tell the judge you're wife ran up the credit card bills buying thong underwear for her boyfriend. You have to show the court the receipts or credit card statements showing the purchase and then you have to prove that the shorts weren't for you, you sexy devil.
Discovery may also include interrogatories, depositions and notices to produce. Interrogatories are sets of questions for the other party to answer. Generally interrogatories are incredibly lengthy and comprehensive, 40+ questions, 20+ pages. Usually half of the questions are already answered or don't apply so they're not as difficult to complete as you may think on first glance. Get them done as soon as possible. The notice to produce is usually sent with the interrogatories. It is a demand for certain records. Most of the time disclosure of the records is already ordered in the Case Management Order. The notice to produce puts the other party on notice that you are serious about getting these records and gives you an additionally zing if you don't get the records and have to file a motion to get them. Depositions are when the other attorney gets to question you about anything pertinent to the case their little heart desires. It is not like a hearing, there's a lot of latitude as to what they can ask. Just because they ask it doesn't mean it will be admissible in Court. Depositions are not real common in divorces but you will see them when someone is refusing to cooperate with discovery or there are complex and/or fuzzy issues.
In New Jersey you will have to file a Case Information Statement. This sets out basic information about yourself and pretty detailed information about your finances. Income, assets, debts and your budget are all included. The Case Information Statement is a royal pain to fill out but you must fill it out and file it with the Court. It is the basic document from which flows the river of divorce.
You must cooperate with discovery. I will get a request for someone's bank statement. My client will tell me it's none of their business. Wrong! It is their business and if they have to get the Court to make you give it to them, you will now be paying your ex-to-be's legal fees for the motion too. Full financial disclosure is a requirement. If someone refuses or evades disclosing something it can come back to bite you later when your settlement or judgment is overturned. Hiding assets or information is a sure way to get yourself in trouble and possibly even find yourself with a really bad judgment.
Cooperating with discovery also keeps the cost of your divorce down. If both parties are swapping all the information voluntarily it makes the lawyers' jobs easier and the billable hours less. If you can get the information yourself, do it. I'll ask people to get a pension statement. Their attitude is that's what they're paying me for. OK, have it your way. Charge for you to call human resources and get them to send it to you-$0. Charge for me to get a release from you, mail it with a cover letter to human resources requesting your pension information-your first born. If you want to pay me to do something you can easily do, you're just stupid and deserve to pay for it.
As stated earlier, even in family court, proof is needed. My clients really have trouble grasping this concept. This applies to every issue, not just the financial ones. If you want to claim that your spouse is a bad parent you will have to prove it. Your say so isn't enough. You may need an expert to complete a custody evaluation. If you want to bring up specific incidents you may need to call witnesses to the incidents or have medical reports. If you want to claim that your spouse didn't contribute financially to the marriage you have to prove it. You will need to show the paper trail of the finances. You may also have to prove that there wasn't a good reason for your slacker spouse to not fork out any money during the marriage. If you supported your doctor husband-who-has-now-run-off-with-nurse-Nancy through med school, you will have to show the paper trail of your finances during that time. You may be awfully cute and sincere, but that ain't enough for the judge to rule in your favor.
Discovery is the foundation of your case and is actually fair too complex to fully explain in this crash course. Bottom line, if your lawyer asks for something, there's a reason, give it up with a smile on your face and a song in your heart.
Next up, settlement negotiations: theirs, mine and mine.
posted by The Legal Diva | 10:56 AM
2 Comments:
Just wanted to say that I've been enjoying your series on divorce. Since I'm a single Canadian with no spouse in sight, it's not really personally relevant, but it's interesting just the same. I look forward to your next installment.
Thank you! Kinda makes you glad you're not married doesn't it!
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