Be proactive in gathering documents in the beginning of your case and you will increase your chance of success.
At the beginning of your case, your divorce attorney will assign you the very important task of gathering financial documents for your case.
We call this process “discovery”.
What is Discovery in a Florida Divorce?
Discovery means the gathering of documents to turn over to the other party, or your spouse. This may seem like an extremely lengthy and tedious process, but it is integral to valuing your case and finding a fair resolution.
Florida Family Law Rule of Procedure 12.285 lists out approximately sixteen (16) categories of items that you are required to exchange with the other party. These items range from bank account statements to pension plan statements.
The categories also vary on how much needs to be disclosed. For instance under this rule you are required to disclose three (3) months of bank statements, but only your most recent IRA statement.
The Primary Purpose of Discovery is to Prevent Suprise, trickery, Bluff, and Legal Gymnastics – Northrup v. Acken
The purpose of this discovery is to make the cases as transparent as possible.
So even if you know you are only going to use an item for impeachment, these items STILL need to be disclosed to the other party. These documents would normally be deposition transcripts which you would use to try to catch a witness in a lie. The Courts want each side to know the strengths and weaknesses of the other side to try to avoid prolonged cases, unnecessary trials, and costly attorney’s fees.
How Do I Get Started in The Discovery Process?
If you have not left the home yet, the goal would be to gather as much documentation before you leave. Gather bank statements, social security statements, pension statements etc. This will help start to list out all the assets and liabilities in the divorce case.
Most importantly if you are the spouse who is not in charge of all the bills and finances, this will give you an idea of what there actually is to divide.
In a lot of relationships one of the parties is responsible for paying all the bills, saving money, setting up retirement plans etc. When this happens the non-responsible party has no idea what the marital finances look like.
Some people are actually surprised when going through a divorce at how much might be in a savings account or an IRA. The other problem with this is the non-responsible party has no clue where the bank accounts are, how many there are, or even how and when all the bills are paid.
If you gather documents before you leave the home it could help to determine what accounts there are, so if the other spouse doesn’t turn over certain bank accounts then you know he/she is hiding something. Additionally, by gathering the documents before you leave the home you can see how much money was in the accounts to see if your spouse stared transferring or wasting the marital money.
If you have already left your home chances are all of your financial documents are back at the house. You may be thinking “great what now?”
However, in this digital age most, if not all, of the documents required to be gathered are online. You can contact your bank, credit card companies, or even your HR department at work to help you gather these documents. Most companies are easy to work with, and can compile all the documents necessary rather quickly. Tax Returns can even be ordered online directly from the Internal Revenue Service (IRS). However, if like above you were not responsible for the finances and don’t know the account information, chances are you will have to wait for your spouse to turn over the documentation.
The problem with having to wait for the other side to turn over the documentation is you never truly know if you are getting everything. There are some tools that can be used to try to get to financial information when your spouse is not being up front with everything. However, the best practice it to be knowledgeable before you ever leave the home.
When Do I Get Started With Discovery?
Family Law Rules provide that you have forty-five (45) days after the service of the pleading to turn over all the required discovery. However, like mentioned above it is best to start gathering these documents as soon as possible! You do not want to wait until day forty-five (45) to discover you cannot get a particular document immediately. Some documents can take up to a few weeks to receive if you order them online.
Also, most people want to get their divorce case over as quickly as possible. The sooner you get all the discovery gathered and turned over, then the sooner you can move on to the next “phase” of the divorce process: Mediation. If you get all the documents turned over right away you do not have to wait the full forty-five (45) days before you head to mediation.
Also if you are being up front and not trying to hide anything your spouse will most likely be more willing to settle a case, and less likely to drag it out by using additional tools of discovery.
Further, if you need to get documents from your spouse which they are not turning over, you cannot move forward with remedies for non-compliance until you get your documents turned over. Thus, gather documents as soon as possible!
What Tools Can We Use to Find“Hidden Assets?”
There are certain things to be done in order to try to get at assets one spouse may be trying to hide, or is just not as forthcoming about.
These tools range in time and expense. However, if used properly can get at information which someone is attempting to hide. You must always balance the potential gain with the potential costs when deciding to use any of these tools.
- Interrogatories: Are questions sent to the other side which they are required to answer under oath and send back to you. In Florida the Supreme Court came up with “Standard Interrogatories” which can be sent to the other side. If you want to ask additional questions, you should take the time to think about what you want to ask before sending. This is because the law only allows you to ask ten (10) additional interrogatories before having to seek the Court’s permission to ask additional questions. The other side typically has thirty (30) days to respond to the Interrogatories.
- Request to Produce: A request to produce is a discovery tool to get additional documentation in addition to the categories itemized under Family Law Rule 12.285. You can request appraisals, experts, graphical exhibits composes by the opposing party, and other documents through this tool. The other side then has thirty (30) days to either disclose the items requested, or file a specific objection. If they file an objection, both parties will go before the Judge to get a final ruling on the issue.
- Request for Admissions: These are statements sent to the other side with specific statements that your spouse would then have to admit or deny. This is a handy tool because unlike the interrogatories you can send an unlimited number of Request for Admissions. The other side would then have thirty (30) days to respond, and if they do not the Court may take the particular statements as fact.
- Subpoenas: An attorney or the Court can utilize this tool to attempt to retrieve documents from the source instead of relying on your spouse to turn them over. For instance, a subpoena can be sent to your spouse’s banking institution, and the bank would have to send over documents for all of the bank accounts in your spouse’s name.
- Depositions: This tool is when all the parties get together with a Court reporter to answer questions under oath. This is probably the most costly discovery tool because you would have to pay the Court reporter to be there, and then you would need to pay him/her to get a transcript of the deposition for it to be used in Court. However, this allows you to know exactly how a witness will answer questions during trial, and this can allow you to determine if your spouse has any other assets which have not been disclosed to you yet.
If you fear that your Husband/Wife is going to hide or get rid of assets your best bet would be to get an attorney who knows the law to assist you so you don’t end up losing everything at the end of the day.
These tools to assist in document collection help to get at more documents, which help to give a more in depth picture of a party’s financial situation. The tools also can go back longer than what Rule 12.285 requires.
The average collection length of documents under these tools is three (3) years. However, if you fear your spouse has been moving around/getting rid of funds for a longer time period you can get special permission from the Court to require your spouse to gather documents over a longer time period.
What Can We Do If My Spouse Does Not Follow the Rules?
When one side is not complying with the rules of discovery there are avenues available to enforce compliance. The most common way is to file a Motion to Compel with the Court. This informs the Court that the other side is not “playing nice.”
A Judge will normally give that party the opportunity to fix the problem by turning over the required discovery. If your Husband/Wife is still not “playing nice” a Motion for Contempt can be used for the Judge to enforce compliance.
The remedies available to the Judge at a Motion for Contempt include incarcerating a party who is not complying. This is obviously the harshest penalty; therefore it is rarely used. Other remedies include striking a witness or particular piece of evidence, accepting a statement as fact, ordering payment of attorney’s fees, and other monetary sanctions. Usually, when someone’s wallet is going to be effected they become more likely to play by the rules.