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?

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,

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 so long as the underlying "action" (i.e., the case in chief) has not gone to Judgment - I would serve the form interrogatories along with your application together, and personally and not by mail. If a support order was issued, as in a temporary support order, but the overall case has not been resolved, you are free to conduct discovery. The proper analysis is that each post-order modification or set aside motion is a discrete proceeding with discovery rights and obligations, assuming you've not had a trial on the merits of the entire case. If your matter is "post-judgment," please consider CCP section 2024.020 which might apply - we don't know, because there is no appellate decision on post-dissolution discovery to date.

I'm not sure that all judges see it that way though but I believe 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 subpoeanas, 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 not 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.

T.W. Arnold, III, CLFS

Q. What is a deposition in a California family law or divorce case and what is it used for?

Depositions are hands down the most direct and cost-effective way to move your case forward and expose the other side for the liars they may be! They may be taken of parties, family members, employers, witnesses and anybody else who has relevant evidence to prevent or destroy.

What Is a Deposition Used For?

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.

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).

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).

Depositions Are Exactly Like Testimony In the Courtroom

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 RFO 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.

Depositions Do Require Skillfulness

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 practicing 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.

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 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 whom you love.

Here are more articles about depositions in California divorce and family law proceedings!

Thurman W. Arnold III

Q. How do I use Requests for Admission in my dissolution proceeding?

What Are Requests for Admission?

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. Your questions, or statements of fact or law, must either be admitted or denied by the responding party. If admitted, no further evidence need be offered on the subject issue at any later hearing; the Family Court to take what was admitted to as established. Once admitted, 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 provide my own form that you can modify for your use on our Free Sample Family Law Forms Portal!

Always Combine RFAs with the Civil Form Interrogatories

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. Often parties will refuse to admit something that should be admitted, so forcing them to explain what evidence justifies that refusal helps set up that their refusal is bogus or in bad 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 non party 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. For more information on Family Law discovery tools, click here.

And, as always, in return for our hard work please give us a Facebook like!

TWA

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:

• Subpoenas duce tecum - C.C.P. § 1987
• Form Interrogatories - C.C.P. § 2030.030
• Specially Prepared Interrogatories - C.C.P. § 2030.030 and 2030.050
• Production and Inspection Demands - C.C.P. § 2031.030
• Requests for Admission of Truth of Facts or Genuineness of Documents - C.C.P. § 2033.010
• Depositions - C.C.P. § 2025.010
• Expert Witness information exchanges - C.C.P. § 2034.010

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