Florida Family Lawyer Blog
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).
