If you and your spouse are divorcing, you usually have only one chance to get the terms right. If you agree to a settlement or a judge orders provisions in a decree, both events are based on the financial information available to you or the court at the time. If certain information is unknown, you typically can't go back later and renegotiate your deal or request a new trial. This is where discovery comes in – it's the phase of divorce proceedings when facts are gathered so you know exactly what you're dealing with. Based on the information you receive, you can make educated decisions regarding a settlement -- or the judge can do so in a decree.
The discovery process involves gathering information relating to each spouse's assets, debts and income, issues that can be pivotal to your divorce in several respects. If you have children, most states base the amount of child support on what both parents earn. Income is also instrumental in determining alimony awards, and it is sometimes factored into property division in equitable distribution states. These states distribute marital property based on what a judge believes to be fair, and this doesn't always work out to be a 50-50 split. One factor that judges can consider is the earnings potential of each spouse. So, theoretically, a spouse who earns very little might not be able to rebuild after the divorce if the court awards half of the couple's assets to the other spouse.
Requests of Spouse
Most discovery methods require the cooperation of your spouse. Interrogatories are a series of written questions that your spouse must respond to under penalty of perjury. You can ask him specifically about all sources of income, and he's obligated to tell the truth. Issuing a notice to produce documents obligates him to provide you with current account statements or any other documents you think might help identify how much he earns. If your spouse drags his feet and doesn't respond to these requests, you or your attorney can file a motion with the court as part of your divorce action, asking for an order to compel him to cooperate. If he still doesn't, he can be held in contempt of court. You can also arrange to take depositions, but this discovery procedure can be costly. It involves an in-person question and answer session under oath and recorded by a court reporter. You can use the transcripts as evidence at trial if necessary.
If you think your spouse is being less than forthcoming with the discovery requests directed to him, you can issue subpoenas to third parties to access information. This is possible whenever you have an active divorce lawsuit and the documents you're requesting are pertinent to your case. For example, you can subpoena your spouse's employer, asking for copies of his payroll records. By law, his employer must comply. You can also request statements from his bank or any other documentation that you think might shed some light on his true income.
If the stakes are high, it's not uncommon for a spouse to attempt to conceal income or other assets in a divorce. In addition to discovery, you can hire a forensic accountant to review the documentation you've gathered. These experts are experienced at looking beyond the surface of documents for clues to identify hidden income or assets. For example, the cost of your spouse's lifestyle might exceed what he claims he's earning and what he should be able to pay based on the income he's reporting. You should be reasonably sure that your spouse is hiding sufficient money to justify the cost of an accountant, however. These professionals are usually expensive, so unless you stand to receive a significant alimony or property award, or unless your children would be shortchanged if your spouse successfully conceals income, it may not be worth it.