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What is DISCOVERY in California Dissolution and Family Law Cases? (Part 1 - Form Interrogatories)

Q. Can you tell me how "discovery" works in California divorce and family law cases?


What is Discovery?

"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.

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.

Types of Useful Discovery in Family Law Proceedings

]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.


Always Send the Other Party the Family Law Form Interrogatories!

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.

Consider Drafting "Special Interrogatories" To!

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.

For more articles about how to use discovery in your divorce or family case, visit us here!

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Thurman W. Arnold, III, CFLS


Comments

I am in the petitioner in the process of discovery for a complex divorce that appears to be headed for trial for a property settlement. I have counsel that I value who advocates for the usefulness of serving general form interrogatory 17.1 with my requests for admissions. Do you have any thoughts about whether it makes sense to serve general interrogatory 15.1 with special contention interrogatories? I know that 15.1 is intended for civil cases with pleadings. Is the "denial of material allegation" part of 15.1 applicable and useful in family law discovery? For example, does 15.1 add anything to a special interrogatory of the nature: "Do you contend that petitioner is incorrect in claiming the money you transferred to your separate bank account is a community asset of the marital estate" - or - "Do you contend that petitioner is incorrect in his claim that you violated your marital fiduciary duties when . . . "?
Message: Many thanks -- your various articles on family law are generally the best, most useful, and easiest to understand about divorce that I've found on the web. Let me know if you need further information about my question about form interrogatory 15.1. I'll check your blog for an answer. If it's something not of interest to you, then I'll still be very happy with all the good pointers I've already gotten from your blog.
Hi Roslynn:

You can download most of the forms you need from my Form Library page.

You are correct that FL-145 (form interrogatories) is relevant mostly to disso actions. However, there is nothing that prohibits the form from being used in any family law related proceedings, so you are not safe to ignore them plus you always want to show the judge you are bending over backwards to be cooperative. For that reason I would complete it. It must be mailed no later than 35 days from the date set forth on his proof of service (not date of receipt or post-stamped date). Many OSC's are set for hearing prior to time in which these responses would be due (i.e., maybe they are due 5 day after the hearing). You could wait and see whether the judges rules and so ends this round at the hearing, but expect that the child's father might also ask the court to continue the hearing so that he has a chance to get your information - if that occurred you might find you'd wasted some time away from work to go to court. You
hello! i was served a FL-145 (by mail -- and with NO blank responsive form FL-142 included) from my son's father as a response to my petition to obtain child support. (i have been the sole supporter of our son the last 8 1/2 years. ) this form appears to be more of a "divorce" thing and i do not think it pertains to our situation. (1) we were never married (2) we have not resided together since 2003 (3) we are not "domestic partners" and (4) we have no "joint" property. is an FL-145 "normal" procedure to be sent in such cases? i did file the required "income and expense" declaration with the courts and served it on my son's father and i believe that is the only formal requirement along with pay stubs and income tax returns as requested by the court. i genuinely appreciate any feedback you can offer! all the best and happy holidays! :)
Absolutely! Send it back - it should be standard operating procedure to exchange these form interrogatories because they not only help get information your son may need, but it also becomes a record of what was disclosed and how thorough it was.

TW Arnold
Helping my son do paperwork to get divorced. Just got served FL 145 (we are in CA) Do we turn around and send the same form back to them to complete as well? We already sent FL 100, 110, blank 120, 140, 142, 150, 160, 161, D-49 and they have sent us nothing. Thank you!