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The Divorce Discovery Process
What is the discovery process in a divorce?
Basically it is the exchange of all of the financial information between the spouses. After the divorce case is filed the case will then be assigned a track. This simply means that the court will give the parties the case a certain amount of time to conduct the discovery for their case. The more complicated and the more money that the spouses have, then the longer the discovery period will be.
How long will my divorce case take?
This is the "million-dollar" question that I receive from almost every client. The answer is that it depends on many factors. There is a major doctrine in the family court that is called "best practices." This simply means that your divorce case should be finished within one year. This is the goal of the courts. However, unfortunately many county courts simply do not have enough judges and staff to make this goal a reality. The plain trust is that many cases are endlessly adjourned because of the simple fact that there are not enough judges to handle all of the cases. Another important factor is that the judges constantly rotate in the family courts. Most of the new judges are assigned to the family court. If you case drags on then odds are your judge could be transferred to the criminal or civil division. Thereafter, a new judge will have to be assigned to your case and learn the entire case over again. This factor will also cause your case to drag on.
What are the factors that determine how long it will take to finish my case to finish?
The important factors that determine how long your case will last are as follows:
What is the case information statement?
The case information statement (CIS) is the most important document that is filed in your divorce case. Don't make the silly mistake and call your CIS a CSI like the tv show. The discovery phase of any divorce case starts with preparing and filing a CIS. The CIS is a comprehensive financial form and it provides a vast array of important details, including names and birth dates of the parties and the children, addresses, employer information, personal identification information, and past and present income information. The CIS also contains a list of all assets and liabilities, including real estate interests, bank and securities accounts, motor vehicles, business interests, pensions, savings plans (such as IRA and 401k plans), other retirement accounts and employment-related assets (vested and non-vested), mortgage and home equity balances, automobile loans, credit card debt, etc.
The CIS also requires each spouse to disclose what their monthly budget is. The budget is a monthly itemization of all expenses. Your budget will include your shelter expenses, and monthly payments for all utility charges, insurance costs, taxes, etc. The budget also requires a detailed list of all of your transportation and personal expenses, and they include car payments, gasoline costs, food expenses, entertainment costs, even hair care. The CIS is a very complicated form, and it takes many hours to complete it correctly. Most of my clients dread filling out the CIS. What makes it worse is that the courts expect the parties to keep updating the CIS when the case drags on and on. One of the major purposes of the CIS is that it is designed to give the courts a tool to analyze the lifestyle of the parties.
What are interrogatories and notices to produce?
In most cases the parties serve interrogatories and notices to produce. These legal documents are simply used to obtain financial information. In many divorce case the spouse with the money tries to hide his assets or portray his income as low as possible. Therefore, it is often critical to conduct full discovery in a divorce case. These two discovery tools require the answering spouse to answer an extensive set of questions and to provide documents to prove their responses. The typical areas of questions asked in the interrogatories concern the health of the party, their education, employment and business background, and endless questions about the couple's assets along with their overall detailed financial situation. Meanwhile, the documents that are required to be produced include bank statements, cancelled checks, real estate sales contracts, credit card statements, loan applications, tax returns, 401(K) statements, etc.
What are depositions?
Once a party answers the interrogatories and complies with the notices to produce, sometimes the case is still a war and it can't be settled. Moreover, in some cases a devious spouse might try to hide his assets. In these type of cases each spouse will have to be deposed. A deposition is a discovery tool and the lawyers ask the spouses endless questions. A deposition is just like a trial without a judge. The depositions are held at one of the lawyer's office and are held before a court stenographer. The court stenographer will then prepare a written transcript of the testimony. Depositions are very expensive and time consuming. They should only be held if it is absolutely necessary. The cost to pay for the court stenographer often runs $500 to $600 per deposition.
Could you please summarize how the discovery process in a divorce case works?
The discovery process is the most time consuming and frankly brutal part of getting divorced. Filling out the CIS is like pulling teeth. Digging up bank records, mutual fund statements, tax returns and other financial records especially when you are upset is just miserable. Many people don't keep good track of records and they have to recreate these documents. Therefore, many people must spend hours on the phone listening to voice mail to obtain financial records. What is also frustrating is that many people try to hide their assets during the divorce. People love to play games during the divorce. Unfortunately, many times a devious spouse will get away with hiding assets. However, be forewarned that many judges if they bust you hiding assets or playing games will "wipe you out," and award almost all of the marital assets to the other party. I have seen this type of calamity happen with my own eyes. In the majority of cases most devious spouses will get away with hiding assets. However, there are dire consequences if you are caught hiding or dissipating marital assets. The laws of equitable distribution provide that there can be an unequal split of the marital assets if there is malfeasance on the behalf of one spouse.
In summary, the discovery process is the aspect of the divorce that could make it very expensive. If the parties litigate in good faith and exchange their financial information then the cost of the divorce can be contained. However, if the parties play games and hide their money, or transfer it to family members or to girlfriends, then quite often "all hell breaks loose." Thereafter, in these types of cases the divorce often takes on a life of its own. There are cases of domestic violence filed, motions to prevent the dissipation of assets are filed, and these types of cases almost always go to trial. Sadly, at the end of the day many times the family's savings are all but wiped out from the cost of paying for the lawyers. Therefore, it is always advisable to cooperate with your ex-spouse during the divorce. You should make full disclosure of your income and assets and the let the judge make his call. If the judge believes that you are not litigating in good faith, and if he believes you are hiding and/or dissipating assets, then you could be in for a very rude awakening when you receive the judge's decision.
If the divorce is being filed under one of the seven fault grounds (including extreme cruelty, adultery, abandonment, substance or alcohol addiction, institutionalization, deviant sexual conduct and incarceration), the 18 month separation period, required for a no-fault divorce, is waived. However, each ground for divorce has its own stipulations.
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