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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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