discovery

Problem: You are in the dark about family finances.

Solution: Use the methods described in this chapter to get the information you need to do your divorce.

Discovery — How to Get Evidence to Support Your Case

A. What is discovery

Discovery is the way you prepare your case

You may not have all the information you need for your divorce. If you have been the one who kept all the records, and your spouse was not self-employed and did not have "side jobs" that you didn't report on your income tax returns, you may have all the information you need. If, on the other hand, you were not the record keeper or you have a secretive spouse, you may need to get more information before you can proceed with your case. "Discovery" is the legal mechanism for obtaining information from your spouse.

Fiduciary duty

Under California law you and your spouse both owe one another a “fiduciary duty.” This is a duty of highest trust and confidence, such as would be expected of the trustee of a disabled child. Your ex is supposed to give you information even without your request. If your ex gives you all the information you need, you won’t need this information on “discovery.” This information is for people who have to struggle just to get basic information.

B. What information do you need

Get copies of tax returns, deeds, and bank statements

The first and most basic thing you have to do is to obtain a copy of your joint income tax returns for the last two or three years. Also, if you own a home or other real property (that is, other things like homes, apartments, land), you must have copies of all the deeds and purchase papers for those properties. You need copies of bank statements for the present and for the time before your spouse knew there would be a divorce (so that this will be before the spouse may have drained or manipulated the accounts). You need copies of all credit card statements in your name, your spouse’s name and both names. This is the bare minimum of information necessary to make an intelligent decision in your case.

Some assets are hard to find

Deferred compensation (income your spouse received but has put in a savings-type plan and on which the spouse has not paid income taxes) may not appear on a paystub, on your income tax return, or in a bank account; these records must be separately obtained. Tax-free income will not appear on an income tax return. For example, California municipal bonds which are not subject to income tax probably will not appear on your income tax returns. Income from out-of-state municipal bonds will be on your California return, and you will have to get your California income tax return to get this information. Mu­tual funds that produce tax-free income may be very hard to find. Recently, many people travel outside the US, and they may have opened up accounts in another country; if all those transactions were in cash, they may be difficult to find. If you have valid reason to believe your spouse has secret accounts outside the US, you may need the help of Attorney Yeamans at (408) 867-8137.

C. The cheapest way to get information — informal discovery

Your family’s home computer

If you or your spouse has a computer in the home, locate a computer consultant, and have them copy every single thing that is in that computer, particularly any income tax returns, onto disks, and put those disks where your spouse cannot take them from you. This does not mean that you should put them into the trunk of your car. Put them at the home of a friend or relative whose home your spouse cannot enter.

If possible, ask your spouse

Of course, the simplest thing is to obtain a copy of documents from your spouse, but if he/she is not cooperative, you can still get copies of these documents from other sources. You can obtain information even if your spouse refuses to cooperate.

D. Get copies of documents from original sources

Tax returns

You can get a copy of any joint income tax return that was filed by you and your spouse together. Even if he/she forged your name, you should be able to get a copy. In case of forgery, you could have to contact your representative in Congress for help in getting a copy, but this would be an extreme case. You need complete copies of your returns, together will all schedules and attachments, not just the form 1040.

Your tax preparer

You can contact your tax preparer and get copies of your tax returns from the preparer, but most of them do not keep W-2 forms. Even if your tax preparer is a great friend of your spouse, he/she knows he/she is obligated to give you a copy of any joint return in which you are listed as one of the spouses. If your spouse prepared the return with a computer, of course, you do not have a tax preparer to consult, but you may find the information on the family computer.

Internal Revenue Service

You can also contact the Internal Revenue Service and get copies from them. www.irs.gov/individuals. Do not merely ask for a “transcript” of your return; you want a complete, certified, copy. The IRS sometimes provides copies within a month, but sometimes they send you a letter that basically says, "We can't find your return; ask again in 60 days if you really want a copy." Therefore, you need to make your written request to the IRS long before you actually must have the copy in your possession as you may have to make more than one request to get the copy.

Franchise Tax board

If you have any reason to believe your spouse may have out-of-state tax-free municipal bonds, you may need to con­tact the Franchise Tax Board at www.ftb.ca.gov for a form to request a copy of your California income tax return.

Get copies of deeds from county Recorder

You can get copies of deeds from the County Recorder of the county in which the property is located. You go to the County Recorder's office and look up your and your spouse's names in the "Grantor/Grantee Index." A grantor is the person who gave the deed; a grantee is the person who received the deed. If you buy a property, you are the grantee. On the deed of trust that secures a mortgage, you would be the grantor. (In California we don’t use the word “mortgage” but “deed of trust.”) The Grantor/Grantee Index gives you the information that you need to obtain a copy of the deed at the Recorder's Office.

Get bank statements from bank

For joint accounts, you can get copies of bank statements from your own bank by asking and paying a fee or by downloading them on line. The bank will not give you copies of statements for accounts that are only in the name of your spouse. You have to subpoena those. Contact each credit card company for statements If you don’t have copies of your credit card statements, preferably for at least the past year, you need to contact each company by phone or on the internet and obtain copies.

Review documents carefully to locate hidden assets

Once you have copies of the tax returns and other documents, read them carefully. Even if you have a lawyer, you should read your own tax returns. Schedule B of the tax return, for example, may list interest income which may help you in locating hidden bank accounts. A deed will show which title company recorded the deed, and you can contact the title company to obtain copies of the closing statement from when you and your spouse bought the property. If you have significant property or complicated finances, these documents may not be suffi­cient. But if you did not have at least this information, you would know that you did not have enough information to make intelligent decisions in your divorce.

Personally review all records even if you have a lawyer

If your lawyer obtains copies of your spouse's records, such as bank records, you should personally go and review those records. You may notice things that the lawyer cannot. For example, once an accountant working for the wife's di­vorce lawyer reviewed the husband's business records, and the accountant thought that everything was in order. But when the wife herself reviewed the records, she saw that the hus­band had not only his mother but also his girlfriend (who did not work in the company) on the payroll. The accountant was a good accountant, but only the party had the vital information that made the difference in the case.

E. Formal Discovery

Do formal discovery early

When a case is near the trial date, it is too late to do discovery. The Code of Civil Procedure requires that discov­ery must be completed by thirty days before the first trial date in your case. If the trial is postponed, the discovery cutoff is not postponed. If you, for example, send out interrogatories (written questions that must be answered under oath) to your spouse by mail, your spouse has thirty-five days to answer; if he/she does not answer or he/she gives incomplete or evasive answers, you need to make a motion to compel, and your spouse is entitled to twenty days' mailed notice of motion plus time after the hearing to prepare answers. So you can see that this one part of discovery alone could require two to three months, and if you have to complete it by thirty days before trial, you must start almost a half year before the trial to accomplish this one thing alone.

Do not use discovery for harassment

You should engage in formal discovery only regarding information that you really need for your divorce. Do not request filing cabinets full of papers just to harass or to vent anger. There are three reasons for this in addition to the basic reason that you should not engage in harassment or spite. First, if you need to make a motion to have the court enforce your request, if it is so broad it appears oppressive and burdensome, the judge may well deny your whole request for information. Second, the judge may make you pay sanctions or attorney's fees to your spouse if it appears you were engaging in harassment. Finally, it is not unusual for a spouse to change the names on the papers and re-send the entire request to you, and you may find-yourself burdened by the very same requests you created.

Discovery cutoff

Formal discovery must be completed at least thirty days before the date on which your trial is first set to occur. Even if your trial is postponed, this does not reopen discovery.

Warning: Discovery motions can be dangerous

Many discovery statutes indicate that if a motion to com­pel discovery is made and the judge denies the motion, sanc­tions (that is, money fines to punish you) shall be awarded. If you are not sure you will win your discovery motion, maybe you should not make it. On the other hand, your spouse has a duty to disclose all relevant information, and the court should support your legitimate requests.

1. Request for Production

Assuming your spouse filed a formal Response with the court, you are entitled to send him/her (or his/her attorney if there is one) a Request for Production. In that request you will ask, for example, for copies of all income tax returns for the last three years together with all schedules and attachments as well as all amended returns, copies of all deeds to properties, and for bank statements from one year ago, one month before your spouse knew there would be a divorce and now. You pick a date for production that is at least thirty-five days away. You must also have someone sign a proof of service by mail for you to send with the request. Attorney Yeamans at (408) 867-8137 may help you write such a request.

Request must be clear and not too broad

The Request for Production must be clear enough that your spouse knows exactly what you are requesting be pro­duced. Also, you cannot ask for so many records that it will be unfair, such as all bank statements and canceled checks during a twenty-year marriage. You probably need to specify the time period to limit your request, such as for bank records, to avoid this problem.

Response must be verified

You are entitled to a written response, under oath, from your spouse. If your spouse did not sign a verification form (a statement under penalty of perjury that the contents of the document are true) and attach it to his/her Response to Request to Produce, the response is inadequate, and you cannot rely on it.

Time limit to make motion to compel production

If your spouse completely ignores the Request to Pro­duce, you do not have a legal time limit to make a motion to compel. But if he/she makes an evasive, inadequate or unver­ified response, you have only forty-five days in which to file and serve a motion to force him/her to produce.

Prerequisite to making motion to compel production

Before making the motion, you must write your spouse a letter, keeping a copy, and explain why the response was inadequate and demand further response. If the letter does not produce an adequate response, you need to make a motion to compel production. After the hearing, you prepare an Order After Hearing, just as with any other motion. Be sure to include a deadline for production in your order.

2. Written interrogatories

What are interrogatories

Interrogatories are written questions that you can send to your spouse, which he/she is required to answer in writing under oath. The main purpose of interrogatories is to get basic information that will help you prepare for further discovery such as depositions or subpoenas.

Judicial Council form interrogatories

The Judicial Council has prepared standard form interrogatories for use in divorce cases (FL-145); also serve a blank Schedule of Assets and Debts (FL-142). If you want your spouse to fill out a Schedule of Assets and Debts, you must be sure to include this blank form. As to the other interrogatories, you simply put an x in the appropriate box.

Specially prepared interrogatories

You are not limited to the printed form interrogatories but can use typewritten, specially designed interrogatories. However, you are allowed to use only thirty-five of such specially drafted interrogatories (counting each subpart of each question as an interrogatory) unless you file a declaration explaining the necessity to use more questions. Writing interrogatories is not easy as each question must be broken into its simplest form, not combined with other questions. You would probably need Attorney Yeamans’ help at (408) 867-8137 to succeed in drafting non-objectionable interrogatories.

Proof of service by mail

When you send interrogatories, either form or specially drafted, you must prepare a proof of service by mail for your server to sign. You keep the original Interrogatories and the original proof of service by mail, and you send a copy of the interrogatories and the proof of service to your spouse or his/her attorney if he/she has one.

When are answers due

Your spouse has thirty-five calendar days from the date the inter­rogatories are mailed in which to submit written answers to you. Deadlines falling on weekends or ocurt holidays are generally extended to the next day court is open.

Motion to compel

If your spouse refuses to respond or gives incomplete or evasive answers or fails to provide a signed verification, you are entitled to compel him/her to respond. This will require a written motion to compel answers. Detailed rules cover such motions, and you will probably need assistance from Attorney Yeamans at (408) 867-8137 to make the motion.

3. Depositions

What is a deposition

A deposition is testimony obtained in the office of one of the attorneys (or in some other office if neither party has counsel) under oath in the presence of a court reporter, it is just like testimony in court, but there is no judge present. Afterwards, the testimony is written up in a typed booklet and can be used in court.

Who may be present at a deposition

Both parties (the husband and the wife) are entitled to be present at the deposition as well as any lawyers. The Code of Civil Procedure does not limit who can attend a deposition; it only provides for an order to exclude someone. Thus, unless the court excludes a person, anyone can attend although this is very rarely done. A battered spouse probably could bring a support person.

You can direct your ex to bring documents or things to the deposition

If you do the forms properly, you can not only take your ex’s deposition but also direct him/her to bring items to the deposition.

Whose deposition can you take

You can take the deposition not only of your spouse but also of other people, such as the custodian of records of your spouse's employer or the custodian of records of your spouse's bank or the custody evaluator. In that manner proof of income and bank records can be obtained. It does not matter that the spouse does not want to cooperate in this because the law permits this discovery. The place where a witness' deposition is taken must be within seventy-five miles of where the witness lives. (CCP section 2026.010)

Depositions are very expensive and require you to arrange for a court reporter

Depositions typically cost about $4.50 per page for the original (with the copy being about $1.50 per page), and it is not unusual for a deposition to cover 150 pages for a total of $675 for the original. This is the most expensive book you will ever own! Therefore, depositions are used only when the information cannot be obtained in some less expensive man­ner. You must arrange for a court reporter to be present to record the deposition. You may locate one through the phone book yellow pages or internet under "Reporters-Court."

Records-only Depositions are cheap and effective

You may obtain employment and other information about your spouse by means of a records-only deposition. You can obtain documents regarding wages, retirement, benefits (in­cluding stock options and stock savings plan) and deductions for 401 (k) or other savings plans by using a records-only deposition. If your spouse quit working for a company, you can obtain his/her personnel file, but you may need to serve one set of papers on the payroll department and a second one on the personnel department if the business is very large. The difference between this and a regular deposition is that a records-only deposition does not occur as a meeting in front of a court reporter but only by the custodian of records mailing records to you. So the Notice of Taking Deposition form says "RECORDS ONLY--NO APPEARANCE.”. While private companies handle this work efficiently (but not cheaply), they usually insist that you have an attorney of record or they will not work with you. In California you can use a Notice of Limited Scope Representation (FL-950). Using that form Attorney Yeamans at (408) 867-8137 can help you obtain records.

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