How to: Formal Request for Discovery in Family Law

By Teo Spengler

It isn't likely you will pass through the straits of divorce without discovering something about your spouse's character and your own, but the legal term "discovery" refers to something more formal: the procedures available for getting questions answered in a lawsuit. Trust is one of the first casualties of a divorce, making information-gathering difficult; the discovery process fills that gap by requiring each party to provide true information under penalty of perjury, but only if the asking spouse follows state procedures.

It isn't likely you will pass through the straits of divorce without discovering something about your spouse's character and your own, but the legal term "discovery" refers to something more formal: the procedures available for getting questions answered in a lawsuit. Trust is one of the first casualties of a divorce, making information-gathering difficult; the discovery process fills that gap by requiring each party to provide true information under penalty of perjury, but only if the asking spouse follows state procedures.

Disclosure

Disclosure is not a formal request for discovery, yet the disclosure process is a central method of obtaining information in a divorce in some states. California, for example, requires each divorcing spouse to fill out disclosure forms and provide them to the other spouse. The preliminary disclosure form includes information about salary, bank and stock accounts and other assets, as well as amount and types of debt. Copies of supporting documents must be attached for the disclosure to be complete. During the divorce, each spouse must update his disclosure forms to keep them current. If you live in a state requiring divorce disclosure, no request is necessary; the procedure is mandatory and may well eliminate the need for more formal discovery.

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Formal Discovery

If you do not obtain the information you require from your spouse in disclosure, you proceed to formal discovery requests. Four principal types of discovery requests are used in most courts: interrogatories, requests for production, requests for admission, and depositions. The most efficient type to use depends on the information you wish to glean, but often several types are used together to obtain the broadest range of information. Writing up discovery requests can be difficult for a layperson to undertake as each state has its own specific rules about the form each discovery method must take. Enforcing a discovery request if your spouse does not answer requires motions to the court and is usually best left to an attorney.

Interrogatories and Production Requests

If you have specific, detailed questions you need your spouse to answer, Interrogatories may be the place to begin with formal discovery. Interrogatories are written questions from one divorcing spouse to the other, and they must be answered under penalty of perjury. The questions do not need to be about finances; they can touch on any issue relevant to the divorce action including living situation, health and employment. In states that do not require disclosure, a party often combines interrogatories with a request for production of documents. This request requires the party answering the interrogatory to produce true copies of documents that support the interrogatory responses, such as bank statements, property titles or medical reports. The required form of these documents varies among states. In many, the discovery requests are mailed to the party rather than being filed with the court. They are only brought to the court's attention if a party does not answer them fully.

Request for Admissions

Another method of formal discovery is request for admissions. A request for admissions is a list of facts you send to your spouse to admit or deny under oath. For example, you might ask him to admit that he owns certain assets or that certain documents are genuine. Requests for admissions can save both parties a lot of time since whatever facts are admitted do not need to be argued about at the divorce trial. As with other types of formal discovery, the rules and procedures vary from one jurisdiction to another, so it is crucial to understand the requirements of your court before you send out requests for admissions.

Depositions

Depositions allow you to ask your spouse -- or any other witness -- direct questions in a face-to-face interview. In a deposition, you or your attorney summon the party or witness and ask them questions that relate to the divorce. Responses must be made under oath. Both the questions and answers are recorded and can be used at trial. This procedure can be expensive since attorneys are often involved for both parties and the testimony must be transcribed. You initiate a deposition by giving the person to be questioned appropriate notice. If the person is not a party to the action, you generally have to arrange for a third party to present the person with a Notice of Deposition.

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Financial Discovery in a Divorce Dissolution

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Can You Ask for Copies of Power of Attorney Through the Courts?

Despite what you may have seen in Perry Mason reruns, astonishing court revelations are not the norm. The modern American court system favors open disclosure, and evidence exchange before trial is encouraged to avoid surprises. Arguably, all documents relevant to a legal dispute must be produced and exchanged with the other side, if requested, and powers of attorney are no exception. On the other hand, courts will not indulge curious relatives by allowing them to see private documents unless the matter relates somehow to issues in dispute.

Rules to Show Cause for Divorce

A Rule to Show Cause is a court order. It is used to schedule a hearing so that a dispute can be heard by the court. The order notifies the other party when the hearing is scheduled, what relief you are requesting and his right to argue why the requested relief should be denied. It may also provide for temporary relief, such as the freezing of an asset, until the hearing is held. You can file a Rule to Show Cause during a divorce case to move the divorce forward, to complain that the other party isn't following a court order or to seek interim relief from the court.

Documents for Divorce & Alimony

Divorces necessarily involve the exchange of information. The bulk of this exchange is generally handled outside the courtroom through written requests contained in standard court documents. Although state procedures can vary, courts have specific forms that the parties need to complete and submit to start a divorce, continue the divorce process and determine divorce-related matters, such as alimony. If you need assistance with the forms, an online legal document service can fill them out and submit them for you.

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