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
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