INFORMATION ABOUT “DISCOVERY”
Under California law, the Court must divide community assets and community liabilities equally between the parties, unless the parties sign an agreement, such as a Marital Settlement Agreement, that sets forth different terms. If information regarding assets and liabilities is not readily available, or if the information provided by the other party is insufficient, or is believed to be suspect, various procedures of investigation are available under the law commonly called “discovery.”
Discovery consists of the investigation and verification of assets and liabilities through various formal procedures, such as depositions, subpoenas, demands for the production of documents and other tangible things, inspection demands, examinations, interrogatories, requests for admission, and the exchange of expert witnesses. These tools are described as follows:
- Oral or written examinations of a party or witness which take place outside the courtroom. A certified shorthand reporter takes down the testimony of the party or other witness, which is given under oath, and later transcribes it. The testimony and any documents produced at the deposition later may be offered into evidence in the courtroom.
- Physical and/or mental examinations. When the physical or mental state or condition of a party is at issue, the opposing party may arrange for an expert witness to conduct a physical or mental examination and issue a report.
- Inspection of documents, things and places. A party may demand that the other party produce documents or other things for inspection. A party also may demand that the other party make land or other property available for inspection, measurement, surveying, photographing, testing, or sampling.
- Written interrogatories. Questions served by one party on another party, requiring that the responding party review all records and books and consult his or her agents to respond to the questions in writing and under oath.
- Requests for Admissions. Written requests served on another party to admit the genuineness of specified documents or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. Usually the requests relate to a matter in controversy between the parties.
- While not technically a method of discovery, a subpoena is a document issued by a party to require a witness to provide documents or records to the subpoenaing party or at the deposition of the witness. Subpoenas also may be issued to compel a witness to appear and testify in court, and also require that documents be brought to the proceeding.
- Experts, such as appraisers, accountants, pension actuaries, and psychologists, may be employed to investigate and write reports to the attorney or the court and to provide expert testimony when needed. Numerous other experts may be employed to assist the attorney in conducting the case and preparing for trial. Discovery may include the simultaneous exchange by the parties of expert trial witnesses and witness information.
Additional discovery-like tools such as the following are permitted and/or mandatory in actions for divorce and legal separation:
- Fiduciary Disclosures per Family Code §§721, 1100; In re Marriage of Feldman (2007) 153 Cal. App.4th 1470; and In re Marriage of Brewer & Federici (2001) Cal. App.4th at 1348. Examples of such disclosures include accountings, access to records and books, and information affecting transactions that concern community property.
- Declarations of Disclosure as per Family Code §§2100 et seq. Declarations include Schedules of Assets and Debts, Income and Expense Declarations, statements of material facts and information, and the disclosure of investment opportunities.
The degree to which discovery is necessary depends in part on the complexity and size of the community property estate, in part on whether your spouse voluntarily (through his or her Declaration of Disclosure), or upon reasonable demand, provides, or is likely to provide, sufficient information and documents to evaluate the character and value of important assets and debts, and in part on whether you have the stamina and financial means necessary to conduct thorough discovery. There is no guarantee that any amount of discovery will reveal facts sufficient to obtain a successful result. But, in some cases, without formal discovery, which is expensive to conduct, you risk entering into a settlement that may not be in your best interest.
Williams Family Law represents clients in divorce, child custody and other family law matters throughout the Sacramento area. Call 916-407-0544 or contact us online to schedule a meeting.