Financial Discovery Issues in Divorce Cases and Equitable Distribution
Financial Discovery Issues in Divorce Cases
Divorce results not only in severing a personal relationship, but also in terminating an economic one. Investigating economic issues in divorce litigation usually involves the process called “discovery.” Discovery is the legal process of obtaining important information during litigation, including divorce. Spouses use discovery tools, such as depositions, interrogatories, and requests for admissions and documents, to gather information from each other and from third party sources, including banks or employers. The formal discovery process begins after the divorce petition is filed, and it continues until the case settles or reaches the pre-trial discovery deadline.
In divorce actions, discovery often is necessary in order to identify, classify, and value the marital property. Financial discovery concentrates on the economic aspects of the marriage and the spouses’ financial circumstances. Detailed financial discovery allows both spouses to obtain the information needed to present a complete and accurate representation of the family’s assets and liabilities. With that information, the divorce court can fashion a fair marital property division and an appropriate support order.
In addition, thorough pre-trial discovery of the parties’ assets and liabilities often prompts the parties to settle disputes without trial. Documents and testimony that are obtained through discovery may be used to make informed settlement decisions or for trial preparation. Discovery also can come into play when dealing with post-divorce disputes over, or enforcement or modification of, alimony and child support. Another role that discovery fills is to provide each party with current information about changes in the other party’s financial status occurring since the parties separated. It is common for the flow of financial information between spouses to cease after separation, and court-sanctioned discovery may be the only way to pry such information from the opposing party.
There is a presumption in favor of an equal distribution of all marital assets and liabilities, however this presumption can be overcome by presenting relevant evidence to the contrary. For example, if one of the parties to a divorce case has wasted marital funds through intentional dissipation, spent on a non-marital relationship or divested himself/herself of marital assets to keep them from the other party, the other party may be entitled to an unequal distribution of assets. It is also important to note that just because an asset or debt is in one person’s name alone does not mean that the asset or debt is non-marital and not subject to equitable distribution.
Upon commencement of a dissolution action, a financial affidavit and a short list of financial documents will be required to be exchanged between the parties within 45 days of the date of service on the respondent. Most times, this amount of disclosure is sufficient and may negate the necessity of further discovery.