Discovery in California Dissolution (Divorce) Litigation

Discovery in California Dissolution (Divorce) Litigation

Parties in California dissolution (divorce) proceedings can utilize the same discovery procedures as are used in California civil litigation as the same rules and procedures are applicable unless another statute or rule has been adopted by the California Judicial Council.  (Ca Fam § 210.).

The importance of discovery in divorce and other family law litigation cannot be emphasized enough.  Utilizing discovery correctly can mean the difference between winning and losing for many divorce cases.  Yet many law firms and solo attorneys are so overworked and understaffed that they do not have the time to propound enough discovery on their divorce cases.  The result is that many cases which could have been won at trial, or a reasonable settlement reached before trial, instead are lost.  The following discovery procedures have been found to be very cost effective in divorce cases.

Form Interrogatories for divorce cases are available using Form FL-145. This form is extremely useful as the questions are specifically tailored to the issues involved in a typical case.  For instance a party may ask the other party to provide the last three (3) years tax returns, and also to complete a Schedule of Assets and Debts Form FL-142 if that form is attached to the Form Interrogatories.

Special Interrogatories are also very useful as a party can request the other party to state all facts, identify all persons having knowledge of the facts, and all documents in support of the facts which, support the other party’s request for attorney’s fees, sole custody, spousal support and other requests or contentions made in that party’s Petition or Response.

Additionally, Requests for Production and Inspection of Documents and other Tangible Things can be useful in obtaining bank and financial records and other documents that are pertinent to the divorce proceeding.  And a party can demand that the other party allow them to inspect and to photograph, test, or sample any tangible things that are in the possession, custody, or control of the party on whom the demand is made as well as demand that any other party produce and permit the party making the demand, or someone acting on that party’s behalf, to inspect, copy, test, or sample electronically stored information in the possession, custody, or control of the party on whom demand is made.  (Ca Civ Pro. § 2031.010).

Thus a party who believes that the other party is hiding assets may demand to inspect their computer, or other electronically stored information.  This could be extremely valuable as computer records may show certain websites that were visited such as bank websites for hidden accounts, or e-mails to banks or other parties which have information on where hidden assets are located.  And many people keep a spreadsheet or other list of their assets on their computer thinking that their spouse will never find it.

And last but not least, Requests for Admission can be used to request the other party admit or deny certain pertinent facts, and/or admit that certain attached documents are genuine.

The California courts have ruled that the scope of discovery in California litigation is very broad.  Any doubts are applied liberally in favor of discovery.

For discovery purposes, information is relevant if it might reasonably assist a party in evaluating case, preparing for trial, or facilitating settlement. Gonzalez v. Superior Court (City of San Fernando (1995) 33 Cal.App.4th 1539, 1546.

Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. Davies v. Superior Court (1984) 36 Cal.3d 291, 301.

These rules are applied liberally in favor of discovery.  Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790, and (contrary to popular belief), fishing expeditions are permissible in some cases. Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 385,  (“although fishing may be improper or abused in some cases, that “is not of itself an indictment of the fishing expedition per se”).

Clearly then,  propounding discovery is a vital tool in (1) evaluating the strengths and weaknesses of each party’s case; (2) preparing for trial, and (3) facilitating settlement.

Form and special interrogatories, request for admissions, and requests for production and inspection of documents and other tangible things all need to be utilized so that the facts, witnesses and documents that support the opposing party’s claims or defenses can be ascertained, deposed and reviewed, and getting certain admissions or denials of issues relevant to the divorce on record before the trial.

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