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 formalized requests 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 are important differences.
One is that there is a major overlap today between a party's discovery obligations (i.e., a duty to answer truthfully when asked) and fiduciary duties in marriages and domestic partnerships that arise by operation of law (i.e., where parties have affirmative duties of disclosure
even without being asked). The later are referred to as
sua sponte duties. I will tie those together for you in a later Blog. However, for now understand that while these
sua sponte duties clearly arise when a dissolution or legal separation is filed, most lawyers and parties ignore them. This means that you do need to inquire through formal discovery even when you shouldn't have to. The key case that discusses this duty is
In re Marriage of Feldman (2007) 153 Cal.App.4th 1470 - read this
sample "Feldman" letter for a deeper explication of these concepts.
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 intended 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. Additionally, when you trying to modify orders in a family law proceeding post-judgment, you can't employ discovery until after a motion or request for order has actually been filed.
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 pre-approved. 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 interrogatories 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.
Thurman W. Arnold, III, CFLS