Articles Posted in Discovery

Published on:

One of the phases of divorce or other family law litigation, which you may find the most frustrating or time consuming for you, but which is often a vital stage of the litigation, is “discovery”. Discovery is part of the litigation procedures during which each side is entitled to receive and demand documents and records from the other; and to give the other side questions, called Interrogatories, which must be answered in writing, under penalty of perjury for false answers. Each party can take the other party’s or other witnesses “deposition”; and give the other a Request for Admissions – statements which you ask the other party to admit or deny in writing, also under penalty of perjury. Discovery is a process during which both sides can attempt to nail down any facts in dispute in the case.

For family law cases (with a few specific exceptions, e.g. adoptions, enforcement proceedings and “simplified” divorces), there is a procedure called “mandatory discovery” which requires both sides to provide to the other tax returns; pay stubs or other documentation of income; banking, investment and retirement account statements; deeds, promissory notes regarding real estate; credit card statements; and a few other items. Each party is also required to complete, file with the court, and provide to the other party a Florida Family Law Financial Affidavit. The mandatory discovery rule is Florida Family Law Rule of Procedure 12.285. The parties can waive the requirement to provide account statements and other records, but cannot waive the requirement to file a Financial Affidavit (unless the case is one of the limited types of cases to which the mandatory discovery rules do not apply). A “simplified” divorce is a case where there are no minor children, the parties have an agreement regarding financial matters, and a few other procedural requirements are satisfied, including both spouse attending the final hearing for the divorce. In a simplified divorce the parties are not required to file financial affidavits, or a written settlement agreement, if they prefer to keep their financial settlement confidential.

Important factors to remember when you are completing your mandatory discovery/disclosure, are to be thorough, truthful and efficient. Discovery can be a time consuming and expensive phase of litigation, but there are some things you can do to make mandatory discovery less costly for you if you are represented by an attorney. Your attorney will give you a list of documents and records to get together, and explain to you what you need to provide, and it is helpful to get all of the documents together and provide them to your attorney’s office all at one time. Many financial records/statements are available on line or may be in the hands of your accountant or financial advisors, and you could turn the task over to your attorney’s office, if you wanted them access your accounts on-line for you and download the statements, and contact your accountant, etc. for records.

In addition to mandatory discovery, each side can demand additional documents and records from the other side. For example, mandatory discovery requires production of 3 months of bank account and credit card statements, but often one or both parties will request records going back further in time, or additional records not on the mandatory discovery list. Pulling together documents or answering Interrogatories can be a time-consuming, even somewhat painful process for some clients, but it’s one of those things to get through. if you and your spouse/the other parent are working the case out amicably between yourselves or through mediation, you can avoid the time and cost of discovery. However, if an issue is in dispute (and the parties are not cooperating), e.g. regarding whether a spouse is under-employed or income or perks available to a spouse through a business, you may need the discovery process to get access to records.

You are only required to provide documents in your “possession, custody or control”, e.g. if you have the document at home or your office or can access it on-line it’s something than can be given to the other party, but you are not required, for example, to send a written request to your bank for additional statements. Depending on how much time you want your attorney’s office to put into your case, your attorney or his or her paralegal also could sit with you, ask you interrogatory questions and record your answers, or sit with you and complete your financial affidavit, but a lot of time can go into that. There are some objections that can be made to discovery requests from the other side and ways to protect confidential or privileged information, but the allowable scope of discovery is pretty broad – if the information/document requested is relevant to an issue in the case, it most likely will need to be produced (i.e. provided to the other side).

Published on:

Most Broward County Child Support attorneys, as well as mediators and Judges at the courthouse, use family law financial software to calculate child support, and there are some child support calculators on-line. If you’re attempting to determine child support though for yourself, it’s going to be a good idea for you to make the calculations by hand, using Florida’s Child Support Guidelines Worksheet – to be sure you get the figures right, including any adjustment for the number of “overnights” each parent spends with the child(ren) (more below on this), and to be sure you’ll understand the issues and items that go into determining child support under Florida law.

The first step is to determine each parent’s net-income. The income and deductions that are considered in determining net income for child support are set forth in detail in Florida’s child support statute, but the easiest way to arrive at the amount is to complete the Florida Family Law Financial Affidavit. There is a separate form if you make under $50,000 per year gross income and one for over $50,000. The financial affidavits, child support worksheet as well as other family law forms can be found at Florida Family Law Forms. As you can see on the child support worksheet, you need each parent’s net income to calculate child support. If you know the other parent’s monthly gross income and their monthly health insurance costs, figuring their net income may not be difficult for you. There are paycheck calculators on-line that will assist you in determining monthly income tax, and social security and medicare taxes. The amounts you list for monthly taxes on the financial affidavit will not necessarily be the amounts deducted each month from a paycheck – some people, based on the number of exemptions they list on their W-4, have more or less than the actual amount of the taxes they’ll owe at the end of the year deducted from their paycheck. In cases where you don’t know the other parent’s income, there is a part of litigation called “discovery” through which you are entitled to receive financial information and records from the other parent, including their financial affidavit and copies of bank account and other statements. If you believe the other party is hiding income, there are more extensive discovery methods available, and some litigated cases will involve using a “forensic accountant” as an expert witness in establishing the other party’s income.

Once you have the net income for each parent, you can proceed with filling out the blanks in the Child Support Guidelines Worksheet. The Worksheet tells you step-by-step what amounts to add or subtract from what, and the other parts of the calculations. The concept is basically that you add together the parents’ net incomes to arrive at an amount for combined net income, then use the child support chart included in the instructions for the Worksheet to come up with the “Basic Monthly Obligation”. If you look on the child support chart, you’ll see income amounts on the left side, and the number of children across the top, and the Basic Monthly Obligation for your situation, as shown on the chart, is the amount the Florida Legislature has determined is the amount that should be used as the basic child support amount (before health and daycare costs) for parents with a certain combined net income and number of children. The Worksheet will then take you through determining your share of the basic monthly obligation, which is based on your percentage share of the parents’ combined net-income. For example if the parents’ combined net income is $3,000/month and your monthly net-income is $2,000, the calculation starts off with your being responsible for 2/3 of the basic monthly obligation. Each parent’s percentage share of daycare and health insurance costs for the child are then added in.

There is then an adjustment if each parent spends 20% or more of the overnights with the child – that’s the number of nights the child spends with you under the time-sharing plan in place. It’s a bit more complicated to explain this calculation, but there are detailed instructions on the Worksheet. Basically, the parent paying child support will pay less, the more overnights they spend with the child.

Published on:

Once a case enters litigation, all of the decisions, in each phase, are important in trying to efficiently and successfully resolve the case. Discovery is the process where each party gets to obtain information regarding the other party – financial and other records, depositions, written questions to the other side, and requests for the other spouse to make admissions regarding important issues – called Requests for Admissions. Discovery is an important and often expensive process.

Motions for Relief while the case is pending can involve many things – a request for temporary spousal support, a ruling by the Judge regarding visitation or how particular assets or debts are going to be dealt with while the case is pending, or a request to have a child returned to the jurisdiction if one parent moves with the child. The are many potential issues, ranging from financial to emergency hearings regarding the children.

Although mediation is a fairly common concept these days, and most people probably have some sense of what that is, there are sometimes some mis-perceptions about what the mediator will do. The mediator is not a judge for the case, and does not make a binding decision about the outcome of the case after each parties argues his or her side. Mediators, though, do have different styles or approaches, including how directive they’ll be in giving an opinion regarding how a case should be resolved, and whether they’ll conduct the mediation mostly with both parties in the room, or more via “caucuses” where the parties are in separate rooms and the mediator in a senses does shuttle diplomacy going back and forth between the parties. Some mediators are attorneys and some are therapists or other mental health professional. So, picking a mediator that both parties can agree on and that you believe will be good for you, is an issue that will come up at this stage of a case. If the parties cannot agree on a mediator, the Judge will appoint one, and if the parties’ combined net income is low enough – below $100,000 in Broward County for example, the parties can attend reduced fee mediation through the court mediation program located at the courthouse. You can find information about the Broward County court mediation program here, and about the Dade County program here.

Although some may downplay the drama of a family law trial, and there could be cases where the parties might instruct their attorneys to not put extensive time into preparing for the trial, because they just want to go in front of the Judge, tell their story, and have someone finally resolve the case, in most cases a family law trial is a highly important and often dramatic event. If a party has put the time and expense into litigating a case up to the point of a trial, the issue is probably important enough that they want to prevail – have the case decided by the Judge in the way they believe it needs to be decided. Once it comes to trial, in addition to having the facts and law in your favor, the most important thing is preparation. If the issue is contested and not absolutely and clearly something that will be decided in your favor, there is no substitute for thorough preparation for the trial.

Published on:

For my first post I want to focus on the process you’ll go through in family court for divorce cases. I think different people will find different ways to go through a divorce or other family law case – some people are most comfortable trying to find someone they can connect with and trust to give them information they need and guide them through; some people will also want to look on-line like this and try to get information to help. With all the information available now on the internet, it’s almost inevitable that we all do at least a few internet searches to look up information, whether we’re dealing with buying a new car or appliance, researching a medical issue or here issues regarding a divorce or other family law cases.

One thing I think is helpful is to have some sort of an overview of the whole process. There are a few ways a divorce case (or a case to establish paternity or child support and other family law cases) can proceed. One way is everyone agrees in advance, there is no dispute, the parties prepare all the required court pleadings and settlement agreement together. I’ll put together in a future post a list of the forms you’ll need, for example, for a divorce case where there is property to divide and the parties have minor children. If everyone agrees and there are no disputes or uncertain issues, the case can be resolved quickly.

In other situations, the divorce case in court begins by someone filing a Petition for Dissolution of Marriage – a divorce lawsuit in which the “Petitioner” asks for what they are seeking in the divorce – dissolution of the marriage, division of property, child-support, time-sharing for the children, alimony, and begins to present and explain their case to the Judge. After the Petition is filed the case proceeds along the following course:

  • The other side – the “Respondent”, is “served”
  • The Respondent files and serves an Answer or Counter-Petition
  • The parties go through a process called “Discovery”, and file and schedule hearings before the Court regarding Motions including motions for “Temporary Relief”
  • The parties negotiate and enter into a Settlement Agreement, or
  • Voluntarily or under an Order from the Court go to Mediation
  • And if still no Agreement, go to Trial