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Recent Posts in Discovery Category
| December 30, 2011 |
| Attorney Michael C. Peterson Speaks About FINANCIAL TRANSPARENCY (Before and Once Divorce Happens) |
| Posted By Michael C. Peterson |
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Advice for Couples in 2012, Including
How to Balance Power in Your Marriage!
One of the most common problems I see arising in (and sometimes leading to) any divorce action is a lack of financial transparency between the spouses or partners. Often, over time, and for various personal, practical and familial and historical reasons, one party has assumed a dominant or exclusive role in the management of community assets, including depository accounts, real estate, investments, and small businesses.That role effectively puts a managing spouse in a position to have vastly superior information about the family finances, and the power to act on such information in the context of divorce to the detriment of the non-managing spouse. This may wind up prejudicing one party if the relationship ends.
It has been my repeated experience that, in anticipation of a divorce action, an unethical or abusive spouse will take strategic steps to hide assets and obfuscate the methods used to hide them. The ramifications to the non-managing spouse can include not only an unfair disbursement of community assets upon resolution of the case, but also manifest into reduced calculations of temporary and permanent spousal support and child support.
California family law attempts to minimize the potential for financial fraud during the life of a divorce action. For example, it creates rules for mandatory disclosures of assets. It creates fiduciary duties for managing spouses. It creates methods for discovery of financial and asset information (but only in the context of a legal action, after the relationship has broken down). It creates pre-judgment and post-judgment penalties for non-disclosure.
In a perfect world such legal tools alone would fully prevent the potential for financial dishonestly between separating spouses. But the reality is that the law routinely fails to protect the financial interests of the non-managing spouse in this regard, and the root cause of that failure occurs because non-managing spouses don't take steps to equalize the playing field when it comes to information about family finances during the course of the marriage. Stated another way, individual non-managing spouses are often unable to utilize the tools that the law provides to ensure they receive a just and equitable share of the fruits of the community's efforts during the course of the marriage because they lack the information necessary to have their lawyer fully protect their interests. Too many non-managing spouses wait until the time of separation to learn about the family finances. By then, non-managing spouses and their attorney are playing catch up, and not always winning. As such, it is of paramount importance that a non-managing spouse be proactive in learning as much information about the family finances as possible, and do so not only on the eve of a divorce, but also during the entire course of the marriage itself. In this day and age, knowledge is the coin of the realm.
Economists recognize that one source of market failure (i.e. inefficient allocation of resources) is caused by a phenomenon called asymmetric information. Asymmetric information affects decisions in transactions where one party has more or better information than the other. In adverse selection models, the ignorant party lacks information while negotiating a contract to the transaction. Common examples of information asymmetry include 'insider' trading in the stock market, or buying a 'lemon' used car. Understanding and combating asymmetric information is crucial to economists because market failure leads to net losses for society as a whole. Understanding and combating asymmetric information should be equally important to the non-managing spouse and his/her attorney because of its strong potential to lead to inequitable settlements or trial results. In the economic sense, asymmetric information between spouses about the family finances is a form of market failure. To be sure, if you are contemplating or undergoing a divorce action, you will (in most cases) effectively be negotiating a transaction that will bind you and impact your financial future.
The best way overall way to combat a managing spouse 's tendency to commit acts of misfeasance or non-disclosure regarding financial interests is to equalize the flow of financial information from the very outset of the marriage, with information parity being a non-managing spouse's goal.
Hand-in-hand with the goal of information parity is a mindset that fosters such parity being present throughout the marriage. That mindset is, simply stated, one of equality and mutual appreciation. Two people will divide labor in a marriage so as to maximize their relative strengths and weaknesses, and in so doing the synergy benefits the martial community as a whole to a greater extent than either person could do individually. Economists refer to this phenomenon as comparative advantage, and recognize that such a situation is optimal in the context of maximizing social utility. So too is comparative advantage optimal for managing a household.
As a simple 'traditional' example, assume Chris and Pat are married. Chris has a greater income earning potential due to holding a doctorate degree and having a good network of people to whom Chris is favorably known in the locale. Pat has greater domestic abilities due to having a bachelors degree in nutrition a work background in home decor. Based on these comparative strengths, Chris and Pat decide that Chris will work full-time and Pat will take care of the home full-time. Pat's excellent meals keep Chris energized and in good health. Pat's superior aesthetic tastes keep Chris in style with cool cloths. Chris's boss comes over for dinner and is impressed by the feng shui of the domicile. Over time Chris gets promoted and raises. Chris uses the additional income to make financial investments, go on vacations with Pat, and purchase a better home. By Chris and Pat each doing what they are relatively strong at, they, both individually and as a whole, are made economically better off. But more to the point, it is their interdependence that necessarily caused the mutual gain. The law recognizes this fundamental principal in the context of divorce by creating the concept of community property; that regardless of whether it was Chris's paycheck that allowed for the growth of assets, Pat's contributions to Chris's earned income are equally important and therefore necessitate equal division should Pat and Chris's relationship end. So as to a non-managing spouse's mindset, I strongly encourage all such people who are contemplating marriage, married, contemplating divorce, or involved in a divorce have one that recognizes their contributions to the community and requires takes a role.
On the practical side of things, here is a list of information parity objectives that I believe healthy marital relationships should achieve:
- Spouses should store copies of written financial documents in a safe place and where the other spouse doesn't have access.
- Spouses should have all depository, investment, retirement, and debt account numbers written down in an asset ledger. Annual inventories of all assets with a value over $500.00 should be maintained and signed off on by spouses and kept in the asset ledger.
- Spouses should keep copies of income information, including payroll stubs and other documents showing income such as rental checks from investment property or brokerage statements from securities dealers.
- Spouses should copy and store all financial account information from banks savings and loans, credit unions, particularly monthly statements. Spouses should also copy and store other banking information such as passbooks, check registers, and deposit slips.
- Spouses should agreed to have all financial information statements should be sent to each spouse individually, directly from the applicable financial institution, and be received only at that spouses primary residential address (and not, for example, at a business). If one spouse insists on receiving their financial information from home or stops receiving financial information mail at the residence, it is often a red flag.
- Spouses should maintain copies of tax documents, including personal tax returns and business tax returns, and attached forms, for the preceding five years.
- Spouses should receive and keep business financial statements, including net worth and income statements, in the case of a small business.
- Spouses should keep copies of all wills and trusts, and attachments thereto (such as a grant deed that has been recorded in favor of a trust for the benefit of the spouses).
- Spouses should keep copies of all life insurance policies.
- Spouses should keep copies of all outstanding debts incurred during the marriage that are in either spouses name.
- Spouses should keep a list of all personal and real property owned prior to the marriage.
- Spouses should keep a list of all safe deposit boxes and their contents.
Other tips you should know about and red flags you should watch out for to protect you from an unscrupulous spouse:
- Don't wait until things are going badly in the relationship to achieve financial information parity. Work towards that goal from the outset.
- Conduct asset searches of your spouse's biographical information by professional third-parties on an annual basis.
- Be aware that there is a statistically higher incidence of spouses hiding money in their second, third, or later marriages.
- Its best to have only a certified public accountant prepare the spouses' tax returns (as opposed to 'bookkeepers' of other unlicensed persons acting as pseudo-accountants), as they are subject to professional conflict of interest rules. Do not sign any document seeking your informed consent to waive any conflict of interest rules with respect to accountants without consulting an attorney.
- Particularly in the case of a small business, become knowledgeable about the business's employees, its normal income, its normal expenses, and how it accounts for them. A small business in particular is breeding grounds for accounting tricks to make it appear less valuable. I have seen this occur by the managing spouse: favor/incentivize cash payments from customers, funnel personal expenses as payments from the business, creating and paying fake employees (including the spouses' own children) and then voiding the uncashed checks after the divorce is final, or delaying new long-term business opportunities (i.e. taking new customer orders, signing new clients, or receiving transfers from escrow-like accounts such as paypal.com). It's important to be familiar with the inner-workings of a small business so you can note when something is amiss. Carefully review and copy customer/client payment agreements and accounts where a small business operates on a largely cash basis.
- Review financial statements on a regular basis. It is easier to access and digest three months of recent transactions than five years of relatively distant transactions. Look out for large or out-of-the ordinary deposits or withdrawals, and try to trace the source/end-point of the transaction to the best of your ability.
- Be aware that municipal bonds and certain savings bonds, because they are tax-free, are not reported to the IRS and therefore can be a vehicle for asset hiding because they do not need to be disclosed on tax returns. Look out for large investments in these assets.
- Non-managing spouses should be careful about signing joint tax returns that claim large deductions for various expenses, particularly in the case where a small business is involved. Although it might mean a larger tax burden in a particular year, in the context of a divorce it often results in lower spousal support and a lower business valuation, with attestation proof presented to a judge in the form of your signature.
- Big changes to the administration of finances can be a red flag: applying for large new loans, the closing of a bank account or change to an investment portfolio, particularly without the input of the non-managing spouse, might give opportunity to hide money.
- Know your spouse's boss well, and make sure they like you. I have experienced collusion between employers and employee so as to show short-run decreases (bonus or raise deferral) to income agreed on increases after the divorce is complete. If you separate from your spouse, let your spouse's boss know that event has occurred in writing.
- Do not sign deeds or other papers concerning real estate papers without consulting an attorney.
- Watch out for bank accounts opened in the name of spouse's children, as they do not get listed on that spouse's tax statements they can be a method of hiding community assets.
- Also watch out for overpayments on taxes. A managing spouse may try to receive a tax return later after the divorce is final by overpayment now, or alternatively filing amended taxes.
- Avoid 'loans' to friends or family.
- Be a Missourian, i.e. don't take your spouse's word. Have the managing spouse show you with the documents that corroborate what they tell you about the family finances.
- Don't allow fear of ruining the relationship, cultural values, or laziness prevent your pro-activity in becoming astute in the family finances. Defensive responses to your inquiries and requirements for financial information parity by the managing spouse may indicate diversion of community assets.
- Always remember that the burden of proof rests on the accuser, not the accused, to prove diverted assets to a court. Take all actions to protect your interests with this rule in mind.
These are my thoughts at the end of 2011 - I wish each of you, and each of us, a Happy New Year in 2012, and I hope that we all strive to be transparent and ethical during the coming year!
Michael C. Peterson, Esq. - Indio and Coachella Valley Divorce Attorney |
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| March 14, 2011 |
| FAMILY LAW SANCTIONS and DUE PROCESS: Santa Barbara Trial Court Reversed in IRMO DURIS |
| Posted By Thurman Arnold, CFLS |
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Visitors to my websites know that I am biased in favor of mediation, believing that parties to litigation involving their family should opt to resolve their disputes themselves rather than undertake the perils of having a judge, or anyone else, decide their matters for them. This includes mediators (whose role is not to decide your issues for you but to facilitate you finding solutions). However, I admit that sometimes this doesn't seem possible. Too often one or both parties are reacting so deeply to their hurt or resentment and spinning with angry, busy minds that they perceive family court as the killing field for their unresolved conflict - a public forum for the spectacle of flogging the other side.
A recent reported decision illustrates the financial waste that occurs in high conflict family court battles, where there are no winners and only losers. My remarks are not intended to convince you to hire me, or to impugn judges whom I contend are struggling valiantly to protect children and mete out justice as best they can within a system that is not equipped to cope with the multi-dimensional challenges of emotional divorce and its aftermath: The trial judges are not broken, but the framework for government sponsored attempts to regulate the processes of divorce and domestic partnership dissolution is. Nor should it be read as an indictment of divorce lawyers or any particular barrister. An adversary model for resolving family disputes guarantees that the experience of everyone connected with these cases will be ... adversarial. Surprise!
In the meantime appellate justices are stepping forth to triage for the litigants, their attorneys, and the lower courts. But is it realistic to expect lawyers (in that small relative percentage of domestic cases where people can afford them) or judges to not be swept into the reactive thinking that the parties' disputes are personifying? I say "no". Our brains are hard-wired to respond to conflict in predictable ways. While we all ought to conduct our affairs in increasingly enlightened and ethical ways, and lawyers and judges surely benefit by incorporating the wisdom of the mental health sciences, a legal and cultural framework grounded in adversarial processes can never escape them. How could it be otherwise?
Marriage of Duris & Urbany
On March 14, 2011, the Second Appellate District (Division Six) reversed Santa Barbara trial judge Colleen K. Sterne's decision to discipline a self-represented litigant (an unemployed attorney) for, among other things, her earlier attorney's tactics in filing a motion to compel document production evidently without first attempting to resolve the disagreement informally. Discovery motions generate large fees and consume valuable judicial resources.
At the end of the hearing on Wife's original requests (the custody and support modification request she'd filed eight months earlier), the trial court imposed $10,000 in attorney fee sanctions against the Wife. Husband's attorney had evidently suggested that the Court do this somewhere in his Reply paperwork, and reiterated the request in his closing argument. The trial court took the bait. Its ruling was found to be an abuse of discretion.
According to the Husband, by the time of the hearing on original OSC to modify custody and support he had spent $25,000 for fees. Wife probably spent a similar but slightly lesser amount since she was in pro per for many months. Their fees and costs for the appeal probably were $20,000 more apiece (but Mr. Urbany handled his own appeal). Husband will get none of his money back, and Wife will recover only a portion of hers. Neither will achieve an emotionally satisfying resolution and their matter likely obsessed their lives over the year and a half. This case is "a pox on both your houses."
Wife's former attorney, Jacqueline Misho, was hired some six months into the proceedings, initiated when the Wife filed a motion for "100% physical and legal custody" of the parties' two children, plus more child support. Attorney Misho took an aggressive stance in advancing her client's claims and filed a discovery motion to compel production of documents. This was unsuccessful. The attorney was then let go. A week later the Wife's custody motion was heard. Although sanctions against her had not been requested by way of a noticed motion (possibly because there was little time in which to file one), Husband urged that she should pay his attorney fees. At hearing end when Judge Sterne announced her intent to hit Wife with $10,000 in sanctions as a share of the Husband's costs in part based upon the prior discovery motion filed by Misho, Wife complained "How am I being penalized for hiring [Misho]? How was I supposed to know? I thought she was the best there was." In my experience, "the best there [is]" often means the meanest and toughest. Many family law attorneys advertise themselves in such a fashion.
I have no personal knowledge about either party's attorney beyond what Google searches of their names retrieve and what a review of the California State Bar website discloses. Both are reputed to be tenacious divorce litigators. The problem with vociferous advocacy, irrespective whether it occurred in this case or not, is that it tends to generate a story of its own and so to increase the conflict noise volume - I confess I know this from my own past personal experiences. It can infect the process - there is something of a reciprocal feedback loop that occurs between high conflict litigants and their attorneys that is difficult to resist. Sometimes it seems to be the only choice, but usually that justification is borne of the tensions within the conflict itself and is not necessarily true.
Family law litigation becomes particularly nasty when attorneys for each side compete to inflame the trial judge with sound bite characterizations about the other. Some clients demand this from their counsel or become quite perturbed if their advocate doesn't respond in kind to these sorts of attacks. Lawyers who are being paid large sums are pressured to speak their client's minds (read: resentments) or risk a loss of confidence by their client. Of greater concern to the integrity of the legal professional generally, there are many family law attorneys whose entire strategy is geared around slandering the other litigant (or their attorney), often by exaggerating or misrepresenting the facts or history of the case solely as a means of confusing the judge or just plain pissing the court off in the hope of creating a favorable bias. Tit for tat then threatens to overwhelm the process. This sort of behavior can include ignoring the procedural rules for raising the issues to be decided, which is a form of ambush that can be effective exactly because the answering party is unable respond to an oncoming train if there is no forewarning.
I am not saying that this was either attorney's conduct in Duris as I lack sufficient details to make a full assessment; instead I am pointing out that adversary litigation programs lawyers and unrepresented parties to use whatever tactics that might work, and sometimes to try them all. This seems to be viewed as not only within the standard of care for zealous advocacy but to be required by that standard. I can comment that one irony of this case is that while the Wife's attorney allegedly failed to act in a cooperative manner in choosing to file a motion to compel without first attempting to solve the argument informally, Husband's attorney seized upon that misstep to buttress a request for sanctions that was never properly placed before the court. Sometimes these sound bites do stick; they did here, at least with Judge Sterne. Unfortunately, under these rules of engagement lawyers are thus encouraged to act as badly as the talking heads we see arguing on many 'news' programs, something that the American public views as a form of 'entertainment.'
This is one of the many dangers of adversarial litigation. Both sides feel righteously indignant, and attorneys tend to internalize their client's upset so that the boundaries between the client's experience and the attorney's own blurs. It is a recipe for disaster, but understandable given that emotional and angry ex-spouse pressure-cookers are letting out steam on both sides of the table all at once.
The appellate court's decision doesn't give us sufficient facts to discern whether the mother's initial application was well-merited, but Judge Sterne's decision suggests she did not view mom's motives (or her attorney's decision-making) to be in good faith. Wife's request for 100% custody looks to be retaliatory and frankly when this is true - and too often it is, even if not here (Judge Sterne referred to Wife's prior discovery motion as a "fee sink") - trial courts need to discourage such conduct in strong ways, especially when it generates unnecessary fees for the other party or damages children. Some people only respond to monetary slaps. I can merely speculate about these proceedings without reviewing the trial briefs and reporter's transcripts, and emphasize that reading 'between the lines' cannot give the whole picture.
Still this is a published decision of the 2nd Appellate District. Following on the heals of Marriage of Fong released for publication on March 3, 2011, these decisions, along with
Marriage of Tharp, should be read together to glean the larger message. Reviewing courts are holding everyone accountable - litigants, attorneys, and bench officers. Due process and fundamental fairness require every side to cross their own t's and dot their own i's. This is welcome instruction to the entire spectrum of family court members and participants.
Be Careful What You Ask For,
and Consider Asking for Something Different
However inappropriate Ms. Duris' conduct may have been (if at all), the appellate justices ruled that due process required that she be informed in advance that the court was considering sanctions in order to have an opportunity to muster and present evidence in opposition. Husband's request for relief should have been properly placed before the Court and not have been based upon offhand arguments buried somewhere in his reply pleadings or first presented in closing argument. This is a good thing. Last year's Elkins legislation spotlights the public policy goal of ensuring transparency for self-represented and represented family law contestants alike.
Now, eighteen months later the odyssey is not yet ended - the Sterne decision is sent back to the trial court (not likely to be Judge Sterne, who can be disqualified as the judge on the next go-round) "with instructions to conduct a new hearing with proper notice." In other words, to relitigate whether sanctions should be assessed against the Wife.
In the meantime, she is awarded her costs on appeal. No appellate case costs only $10,000, the amount in controversy that led to this appeal. Hence, Husband - who won a short-lived victory at the trial court level - will now likely end up footing not only the bill for his trial attorney, but the Wife's attorney fees on appeal as well (be careful what your attorney asks for!) The saga can be now rebooted. Might it end differently this go-around? I'd wager (and I hope) the parties have had enough and that will agree that Wife will forego her appellate costs while Husband will waive a second sanction's motion. But divorce trance is stubborn stuff.
There are only losers in Marriage of Duris. The children of these two warring parents seem utterly forgotten. The take away is that using California court judges to beat up the person you now find despicable (who then smacks back) may blow up in the face of each contestant; given that people often view justice from the lens of their own desires it is a small wonder that government regulated divorce hasn't found a way to respond to such expectations, and possibly never will until the entire system is jettisoned and recreated.
In the meantime try a different tact, if you wish it and if you can. Work together to resolve your disputes collaboratively or through mediation. Even if the other side seems incorrigible, you determine how you respond. Remember, litigation induces trance - seek equanimity and send your kids to college instead!
Here is a link to Marriage of Duris & Urbany.
Thurman W. Arnold, III, CFLS
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| December 18, 2010 |
| Which COURT REPORTING FIRM Do You Recommend in the Coachella Valley? |
| Posted By Thurman Arnold |
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Q. Thurman - who do you recommend for court reporting services in the Coachella Valley? I work with an insurance defense firm in Sacramento, and we have a case pending in the desert and have a number of people to interview.
Tom H., Sacramento Attorney
A. Tom - the only court reporting firm in the desert cities of the Coachella Valley that I work with is Ayotte & Shackelford. I have known these ladies (Donna Evans Ayotte and Laura Shackelford) since 1982, and their dedication and sense of perfection in reproducing exactly what is said in deposition has always been consistent. But more important, they serve their litigation clients in real time and are true professionals, and they are fast!
I only handle family law cases, but I used to do a lot of personal injury (plaintiff's only, sorry!) I wouldn't use anyone else!
T.W. Arnold
12/18/10 |
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| November 11, 2010 |
| Is It Possible to Get My Ex's TAX RETURNS Without Any MOTION to MODIFY Pending Between Us? |
| Posted By Thurman Arnold |
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Q. We were divorced three years ago and I haven't taken my ex-husband back to Court. I think he is earning a lot more now. Is there anything I can do to find out what his situation is short of actually filing a modification motion?
A. Absolutely. There is a little known trick for obtaining useful information, possibly with a minimum of trouble, once each year. This is the Request for a completed Income and Expense Declaration (Form FL-150) pursuant to
Family Code section 3664.
When there is no motion or OSC pending for a modification, termination, or set aside of earlier support orders you are limited in terms of your discovery rights in California - assuming the proceedings were completed in the sense that nothing is pending or presently calendared (if there is no final judgment in a divorce, partnership dissolution, or paternity action then you are entitled to continue to utilize discovery and what I say here doesn't apply). You cannot, for instance, schedule a deposition or send out interrogatories or even subpoena records, at least not properly. I have seen lawyers send subpoenas when nothing was pending and if I had done nothing they probably would have gotten the information requested since the receiving party doesn't know the status of the case, but when I objected they backed off and canceled the subpoenas at once because it was abuse of process to do what they were attempting.
But in your case you only have the option provided for by FC section 3664. This entitles you to send out on an approved
FL-396 Request for Production of An Income and Expense Declaration After Judgment a request no more than once each year
(Family Code section 3663) for the other party to produce for you an updated Income and Expense Declaration.
Importantly, the responding party is required to attach to it their last year's federal and state personal income tax returns. (Family Code section 3665).
If they do not respond to you within 35 days, or if there information is incomplete as to wages, you may serve Judicial Council Form Request FL-397 upon their employer per
Family Code section 3664(b) and (c). Unfortunately, compliance by the employer is voluntary and so this provision lacks teeth. Yet if you later do file a motion and can show a history of noncompliance by the employer and/or the other party you are more likely to recover attorney fees or sanctions as well as prove that the other party is being evasive or possibly dishonest and this may help you not only to carry your burden of proof and obtain a modification but it may impact how strongly the court acts towards your ex. In the case of family businesses where there is a lack of cooperation it helps the Court to see that you are being stymied.
Section 3664 is also a very useful tool for parties who are trying to modify or terminate support payments that they have been ordered to make. If you are a payor former spouse or domestic partner and want to terminate the other party's support rights, you would begin by sending them the Request. Again, if they fail to cooperate and comply it makes them look like they are hiding something.
Finally, Family Code section 3667 entitles you to recover certain sanctions where the Income and Expense declaration wasn't provided you, was incomplete, or lacked the required tax return attachments. While you cannot recover attorney fees if you don't actually have an attorney (and this section doesn't provide for them anyway), you can recover deposition and related costs, like for subpoenaed records (which can be significant charges), even where you are a self-represented party.
Good luck!
Thurman W. Arnold III,
Certified Family Law Specialist
Board of Specialization, State Bar of California
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| September 18, 2010 |
| Am I Entitled to Obtain DISCOVERY If I File a SET ASIDE MOTION Before the Matter is Decided? |
| Posted By Thurman Arnold |
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Q. Hello Mr. Arnold,
I appreciate your website, it is very useful. I really hope you can let me know if I am allowed to serve Form Interrogatories on my ex after I file a FL-360 Application to set aside support order under family law section 3691. Is discovery in this manner permitted before the hearing? If so, how long do I have to wait after filing FL-360 before I serve him with Form Interrogatories? Any help is GREATLY appreciated!
Wendy
A. Hi Wendy -
Discovery is permitted by the CCP in any post-judgment proceeding, once its been filed - I would serve the form interrogatories along with your application together, and personally and not by mail. The proper analysis is that each post-judgment modification or set aside motion is a discrete proceeding with discrete discovery rights and obligations. I'm not sure that all judges see it that way though but it is an accurate statement of the law. One problem is timing - if you file an OSC then the clerk sets the hearing date, which in most jurisdictions will be about the same time as your form interrogatory answers are due - and you can expect your ex to toy with you and so you may not get useful answers within the 30 days after you propound them. When interrogatories are served by mail, they are due 35 days after mailed, plus the responding party can mail the responses and so this adds another 5 days.
His answers may come in after the time your Reply to any Responsive Declaration must be filed and served, so you can't bring the quality (or lack thereof) or information contained in the responses to the judge's attention in a procedurally correct fashion. I usually go with a Notice of Motion format where I want some discovery completed before the hearing - and set the date 60 to 75 days out to give time for the other side to have a reasonable opportunity to have gotten it done and to appear unreasonable or obstructionist if they have not.
It never hurts to send out a set of form interrogatories because at least you can complain about the other party's failure/refusal to comply with their discovery obligations, which may win you a continuance or some bias against the ex.
However, form interrogatories are extremely limited in their usefulness except when seeking general information in the course of a dissolution or legal separation action. A better or additional practice would be to use a demand for production instead of or in addition to form rogs, or possibly special interrogatories if you can draft them properly. You can use a Notice to Appear and Produce Documents at the hearing, assuming you are looking for specific records. I don't have that form up on my website and I'm not sure if there is a Judicial Council form for it. Subpoenas to third parties can be useful in small jurisdictions particularly when those records won't be lost by the clerk's office, but third parties often ignore them and judges usually don't grant continuances based upon the lack of a response (for subpoean's, always demand that the custodian of records actually appear on the date and at the time specified rather than giving them the option of not appearing).
If you had a lawyer and if a lot of money was involved, you might consider a deposition. They require only 10 day's personal service when the Notice is served personally, unless they include a document production request. C.C.P. § 2025.270.
Finally, you might hit the "Other" box on the FL-300 and FL-310 application forms and specifically ask the Court to allow you to complete specific discovery before your application is heard on its merits, as in "I request an order permitting me to complete the following discovery (state it, but make the discovery as short and pin-pointed as you can) before this application is decided by the Court."
How this goes for you depends a lot on the personality of the judge and their custom and practices in managing their calendar. If you have a reasonable and narrow discovery request, no good judge will preclude you from exercising these rights.
Finally, be careful not to draft your application as a sort of disguised motion for reconsideration. If the Court feels you are just trying to take another bite of the apple from a recent hearing, unless you have material new evidence that wasn't disclosed by the other party you may not get much traction.
One more thing - I am assuming this set aside is a post-judgment application. If you are in the middle of a dissolution, legal separation, or paternity action and no final judgment has been entered then you are free to do discovery and then file the motion afterwards or do both concurrently. On the other hand, if there has already been a judgment and the set aside deals with an order that came as a result of a post-judgment motion either of you filed, then one route is follow my recommendations above.
Thurman W. Arnold III
225 S. Civic Drive
Suite 1-3
Palm Springs, CA 92262
760-320-7915
760-320-0725 (fax)
SBN: 107101
Website: http://www.ThurmanArnold.com
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| September 07, 2010 |
| DISCOVERY - How are DEPOSITIONS used in California FAMILY LAW and DIVORCE cases? (Part I) |
| Posted By Thurman Arnold |
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Q. What is a deposition in a California Family Law case and what is it used for?
A. A "deposition" consists of direct or cross-examination of a party or a witness to any divorce or family law proceeding which is preserved by a court reporter and sometimes a videographer as well. C.C.P. section 2025.010. In most cases a written transcript (i.e., a deposition transcript) is a sufficient record of the interrogation.
Sometimes - particularly where the testifying person's demeanor, attitude or behavior is important to convey to a trier of fact at a later time - having the process recorded on a video CD may also be useful, because a written transcript lacks the rich dimensionality of vocal tones and behavioral cues that we have all learned to interpret when we evaluate people's stories. These cues are why actual testimony is so important in family law cases in the sense that judges dealing with important issues often wish to actually hear and see a witness answer important questions before deciding them on the merits. But video taped depositions are cumbersome to present in the courtroom, which may lack the time or equipment to wade through the material. Still, if you can afford the fees for a video too, and can articulate a good reason for videoing the deposition it cannot hurt to do this as well (imagine the impact of the tone of voice of an obstreperous attorney or bitter litigant upon a Judge who otherwise may not get how uncivil someone at the deposition behaved just from reading the transcript).
A deposition excerpt can be quoted, excised, or referred to in a relatively simple pleading filed in the proceedings and in my experience Courts take seriously what the other side has stated in deposition. Truly a deposition taken by an experienced attorney can be devastating to a party's position or case on any given matter.
Most family law and divorce cases never actually get tried to a judge in the sense of the taking of live testimony. Instead, many issues and especially those which result in "temporary" orders are heard by the Court in the form of declarations which are also under oath. The reality is that many cases end before trial, whether by way of settlement or unfavorable interim rulings that never essentially get challenged later. Hence, very often a Family Law Judge or Family Law Commissioner's rulings on an affidavit and argument of counsel or an unrepresented party become the last word on the dispute. Perhaps surprisingly, this can render taking depositions early on in a child custody, move-away, or support case vastly more important and beneficial rather than the reverse.
This is because one of the obvious problems with declarations (an affidavit is essentially the same thing) is that the party who has drafted it usually just presents the information they claim to be true or would like the Court to consider - and you cannot cross examine a written declaration on the fly. To the extent that courts very often render decisions based upon declarations in Order to Show Cause and Notice of Motion formats and proceedings, these declarations go unchallenged from an evidentiary point of view. The unfortunate fact is that most family court decisions are based upon opinion and argument masquerading as "evidence". Testimonial evidence comes in the form of statements and conclusions made under oath which have been tested for accuracy by questioning the underlying basis of a statement or assertion of "fact". Yet, lawyers and sophisticated self represented parties are never called upon to deliver the experiential or observational basis for these conclusions, and busy courts too often assume an argument to be fact if they hear it repeated enough times.
If you have had a motion or OSC filed against you, taking a deposition (particularly of the other litigant) before you file your responsive pleadings, and attaching portions of the deposition transcript to evidence your points and defenses, can be a really good idea. HOWEVER, you typically only get to take one deposition in a dissolution proceeding (although the other side may agree to 'limited scope' depositions and so you may be able to take a series of depositions on different subjects); if you are not involved in a dissolution or legal separation proceeding per se, but instead for instance a post-judgment move-away Petition or some other post-Judgment proceeding, you probably get to take one in each such proceeding as long as they are discrete proceedings.
At the same time, in my experience an unrepresented party is not going to do a good job in taking a deposition, especially if the other party has an attorney who is present to object. Indeed, if you are an unrepresented party whose deposition is about to be taken by an attorney you are being set up for disaster no matter how smart or clever you are or think you are. The good news is that it also my experience that only seasoned trial attorneys understand how to get a good deposition from the other side (especially where the other side's attorney is a professional), or how to protect their clients from being the witness in a bad deposition. A person who hasn't developed tons of examination skills before a jury (which aren't available in family law cases, but is part of any trained attorney's repertoire in civil matters) or trial skills before a judge in many lengthy trials generally doesn't have a sense of what can be accomplished through deposition. It is only because so many family law cases are decided on argument at the temporary stage of the proceedings that a vast number of the family law attorneys practising today have a business practice at all - these same lawyers may or may not have a clue what to do in the heat of the action, whether in deposition or when examining witnesses before a judge.
Additionally, without real life experience with the California Evidence Code lawyers and unrepresented parties often don't know how to handle bogus objections or when to appropriately refuse to answer a question or otherwise to "protect the record" by themselves objecting. It is fun to watch how attorneys respond who really don't know whether they can or should have objected, or not.
In a deposition the questioner (either a lawyer or unrepresented party in pro per) asks oral questions (to be contrasted with written questions contained in form and special interrogatories) and receives immediate responses from the witness, after the deponent has been placed under oath in the same manner as a witness testifying live before a Judge would be placed under oath. This allows you to explore all of the facts, evidence, writings, and other information that a person claims supports their testimony - indeed, a principal use depositions is to ask the difficult questions as to which you fear the potential answers because it is better to find out those answers before you are before a Judge trying to deal with the zinger of an answer to an offhand question you now wished you hadn't asked.
Depositions lock in story lines, the supposed evidentiary basis for them, and they allow you to gather information early on and in detail at little risk to your side of the story (used unskillfully, they may tip your hand).
Entire depositions are rarely, rarely read by the Court - and a party who gives self-serving testimony in answer to a question is entitled to toss the transcript at the Court and say "here, you read it." This is a major reason why they are so effective as defensive tools. Instead, they are excerpted or they are used to confront live testimony from a witness on the stand with prior inconsistent testimony obtained in deposition.
Okay, enough for now on this topic. I will revisit this subject in more detail at a later date as time allows. There is quite a bit more to say. For instance, no Notice of Deposition should ever be sent without an accompanying Request to Produce Documents.
In the meantime, asking a potential lawyer you might hire what their experience is may be awkward, but at almost 30 years of practice I urge you to get a sense of how proficient any attorney is before starting on a path that is so very important to you and the lives of those you love.
Thurman W. Arnold III
http://www.ThurmanArnold.com
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| July 16, 2010 |
| DISCOVERY in California Marital Proceedings - What Are Requests for Admission? |
| Posted By Thurman Arnold |
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Q. How do I use Requests for Admission in my dissolution proceeding?
A. Requests for Admission ("RFA's") can be a useful discovery tool in family law proceedings because they allow parties in divorce and partnership litigation to resolve issues one way or another so that no evidence need be introduced at trial by asking the other party to admit or deny something. This typically involves establishing that certain documents are genuine (i.e., a prenuptial agreement entered into before marriage or a transfer deed or promissory note or copies of documents where original are missing or destroyed). Once this document is admitted as genuine, no further foundational evidence needs to be offered to admit the item into evidence. Other uses include establishing that certain property belongs to the community estate, or that it is one party's separate property. In such situations no further evidence need be offered on the subject issue at any later hearing in order for the Family Court to take what was admitted to be established fact. Once something is established in this way, no contradicting evidence can be introduced to disprove it.
Requests for Admission are governed by California Code of Civil Procedure section 2033.010 and the statutes that follow with that code. We have provided some of the more important ones on our Family Code Statutes page.
You are entitled to ask a total of 35 RFA's as a matter of right. But you can ask as many as you need, as long as they are requested for a proper purpose, relevant, not overly burdensome, and you also have executed and supplied the Declaration for Additional Discovery required by CCP § 2033.050.
There is a Judicial Council form that you can use for RFA's, but it is not required. I will upload and link to that form shortly. I also intend to provide my own form that you can modify for your use on our California Family Law Form Library page.
Another important use for Admission's Requests is that you can combine them with Civil Form Interrogatories, Number 17.1, which requires the responding party to state all facts and evidence that they know of, and other relevant information, for each RFA which they refuse to admit. This can flesh out claims and defenses of the other party that you may be wondering about, and the evidence and witnesses which the other party claims will support them. The answers to these form interrogatories may also establish that a denial of an otherwise undisputed fact, or genuine document, was not in good faith.
One of the chief benefits of RFA's beyond putting to rest matters that are really not issues (and hence saving the time and money to otherwise prove or disprove them), is that a failure to admit them in good faith gives the Court discretion to award the asking party their legal expenses and costs in producing evidence on those same issues if the Court later decides at trial that they were not reasonably in dispute.
As with some other types of discovery (interrogatories and production requests) the responding party has thirty days to answer (plus five more if you serve them by mail). Make sure you always provide a proof of service signed by a nonparty with any type of discovery you serve.
If the other party fails to respond to your Requests for Admission, you are entitled to file a motion that the requests be deemed admitted. Other sanctions might be available, like a court finding no evidence challenging the proposed undisputed items may be offered by the other side in later proceedings.
The subject of objections to discovery is a complicated one for another day. Check our search engine to see if I 've written about it by the time you've landed here.
TWA
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| June 21, 2010 |
| What is DISCOVERY in California Dissolution and Family Law Cases? (Part 1 - Form Interrogatories) |
| Posted By Thurman Arnold |
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Q. I am helping a friend who considering a divorce from her husband. He is a lawyer and she is a school teacher. They have two teenagers. She doesn't expect him to be at all cooperative and he has bragged in the past how he is smarter than any lawyer she might hire. She thinks he has hidden assets. When my marriage ended I had a thorough divorce lawyer who used "discovery" to get really helpful information from my ex - eventually the case settled. That was in Washington. Can you tell me how discovery works in California?
A. "Discovery" generally consists of a formalized requests and responses for the exchange of information that has a bearing upon some issue in a dissolution or other type of family law proceeding. It is governed by the Code of Civil Procedure (the "Civil Discovery Act") and not the Family Code, and the same rules that apply to discovery in all civil cases generally apply equally to divorces. However, there is one important difference: There is a major overlap today between discovery obligations and fiduciary duties in marriages and domestic partnerships. I will tie those together for you in a later Blog.
I am identifying this Blog as Discovery Part 1 because I intend to write a series of articles on the subject and want people to be able to access them in order so they make more sense. This Blog is to identify the basic forms of discovery. There is no discovery until a proceeding is actually filed and generally the responding party must have been served with the summons and Petition at least 15 days before discovery commences.
Discovery options basically include:
The statutory references I provide here for the various discovery modalities are illustrative only - if you are representing yourself or have a lawyer but want to be educate yourself nonetheless you may want to review other 'neighboring' code sections. I will try to hit the most important for you.
The simplest form of discovery in California family law cases is the FL-145 Judicial Council Form Interrogatories. Interrogatories come in two flavors: Form and Specially Prepared. CCP section 2030.030 addresses the propounding of interrogatories.
The form interrogatories are preprinted and pre-approved by the California Judicial Council (those same folks who determine the other forms that must be used in most family law matters), and in family law cases they cover topics relating to income stream, debt, community and separate property, alleged agreements, and reimbursement issues. Simply check the applicable boxes and mail them together with a proof of service signed by a third party. The responding party has 30 days plus 5 when the interrogatories are served by mail to answer (if served in person, then only 30 days). An important benefit of the form interrogatories is that they cannot be objected to since the questions are preapproved. Special interrogatories take care to draft.
Form interrogatories should be used in all cases. Except in cases that are entirely amicable and where there is no question that both parties are being completely honest, I cannot overstate that it is essential that you obtain these answers. Even if the answers are false or incomplete, they create a record of what representations were made to you which may affect your rights downstream (for instance, in the event of a set aside motion for nondisclosure or a false representation).
One of their most important uses is to force the other party to complete a schedule of assets and debts. This is item number 10, and it requires that the FL-142 - Schedule of Assets and Debts also be filled out and provided with the Responses. Be sure to serve a blank FL-142 with the Form Interrogatories. Particularly where you suspect someone is hiding assets or otherwise not being transparent, this interrogatory forces the other party to sign their disclosures under penalty of perjury.
The other form of interrogatories are "specially prepared" meaning they are drafted from scratch and tailored to specific issues. You are entitled to ask up to 35 of these, and more so long as you submit the Declaration for Additional Interrogatories.
Specially prepared interrogatores are extremely useful because you can ask pinpointed questions about specific areas in contention, but they are a bit more problematic for a non-lawyer because they must meet formal requirements in order to avoid objections.
I will cover that topic and provide a sample in a later Blog.
T.W. Arnold III
http://www.ThurmanArnold.com
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