What Is Discovery and How Is It Used in Divorce Proceedings?

What Is Discovery and How Is It Used in Divorce Proceedings
In a divorce case, the end of your legal relationship includes the division of assets and debts and determination of issues on custody and support. Sometimes, only a spouse may have access to information on property you believe to be subject to division in the divorce, or you and your spouse may disagree on an issue regarding custody or support. To prepare an argument in support of your position, you can request information on relevant issues from your spouse or from a third party. This process of requesting and exchanging such evidence is called “discovery.”

“Discovery” is the legal term that describes a pre-trial procedure for collecting evidence and information in order to prepare a case for negotiation or trial. By obtaining and exchanging information in discovery, you can both build your own case and evaluate your spouse’s case.

There are two main types of discovery. Informal discovery is the collection of information by methods such as interviewing witnesses or asking your spouse for information or documentation without a court order. It often is less expensive and takes less time to complete than formal discovery.

Formal discovery is a legal process governed by the Code of Civil Procedure in which one party requests information from the other party, or even from a third party, and the responses are given under oath. Following are the most common types of formal discovery in a divorce:

  • interrogatories;
  • request for production of documents;
  • request for admissions; and
  • depositions.

Interrogatories are questions to be answered in writing under oath. The questions in interrogatories have a bearing on issues in your divorce. For example, you may send interrogatories asking your spouse to identify all items of property claimed to be community and separate property, to identify property owned by your spouse by held by another, or to state whether you and your spouse have agreements on any issues in the divorce. Interrogatories can be used to identify areas of agreement in a case as well as serve as a starting point for collecting information on the marital estate. Judicial Council Form FL-145 is a form of interrogatories designed and commonly used in family law cases.

Requests for production of documents are just that: a request to produce documents under oath. As with interrogatories, the documents requested to be produced should have a bearing on issues in the divorce, such as the identification or value of property owned by either spouse or financial account records. In some cases, such as where one spouse requests spousal support or maintenance, even a spouse’s medical records may be relevant and requested by the other spouse.

Requests for admissions are statements sent to the other spouse in order to ask him or her to admit or deny the truth of those statements. This discovery tool can be useful in establishing areas of agreement in the divorce. For example, where divorcing spouses agree on the identification and division of property but disagree on child custody and support, one spouse may send the other spouse a request for admissions on the property issues. Once those issues are admitted under oath in a written response by the other spouse, they do not need to litigate that issue at trial.

Finally, a deposition is an oral statement given under oath. The party who scheduled the deposition asks questions relevant to the issues in the divorce. The witness, called a deponent, responds, and the responses are recorded by a court reporter. The court reporter then creates a transcript of the question-and-answer session. A deposition is similar to trial testimony, in which one attorney examines a witness and the other attorney then cross-examines the witness. Depositions can be used to memorialize testimony as well as to gauge the demeanor of the witness while answering the questions.

You may use court forms and other resources to conduct discovery yourself, but the discovery and family law rules are complicated. If you are contemplating separation or divorce and you have children, you should consult with a knowledgeable California divorce attorney. The attorneys at the Law Offices of Judy L. Burger  will make sure you successfully navigate the discovery rules. Make the call today to learn how our attorneys can help: (415) 293-8314.

What is a Deposition and How Are They Used in California Divorce and Separation Proceedings?

Legal Grounds for a California Divorce or SeparationAll civil lawsuits, regardless of their type, involve the exchange of information between the parties and the adjudication of rights by a court. Family law cases are no exception.

“Discovery” is the official term given to the exchange of information among the parties to a lawsuit. In discovery, much information is exchanged in writing. For example, one party may send written questions for the other to answer in writing or may request that copies of written documents be provided. Another form of discovery is an oral deposition.

A deposition is similar to trial testimony in many ways:

  • The witness is sworn in (swears or affirms to tell the truth);
  • The lawyers for the parties are present and may make ask questions and make objections;
  • A court reporter is there to transcribe and/or record the testimony;
  • The witness is asked, and must answer, questions; and
  • The witness’s answers are used as evidence in the case.

However, depositions are also different from trial testimony. The most significant differences are that depositions take place in advance of trial, no judge or jury is present, and depositions are held in less formal settings, such conference rooms.

Depositions may be taken of the parties to the lawsuit—in family law cases, the spouses. These are known as party depositions. Party depositions allow the lawyer asking the questions to lock in the other spouse’s version of the case.

However, depositions may also be taken to learn more about what other witnesses might know. These are known as witness depositions. Witness depositions may be taken of the parties’ employers, friends or neighbors, as well expert witnesses, such as economists.

California law
sets forth specific requirements that parties and their lawyers must follow before and during depositions. For example, a notice of deposition must be provided in writing, and it must lay out the date, time, and location of the deposition. If the person being deposed is required to bring documents to the deposition, that must be stated in the notice, as well. In California, most depositions are limited to seven hours.

When conducted by experienced lawyers, oral depositions are a valuable tool used to collect information from the parties to a California family law case. In hotly contested divorce and support matters, you need an aggressive attorney with extensive experience in family law discovery and trials. Call the attorneys at the Law Offices of Judy L. Burger to learn how we can protect you and your children: (415) 293-8314.