I recently had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here). The subject was “Divorce Procedure & Settlement Agreements” and I had opportunity to speak on four main topics in particular: Client Screenings & Case Strategy, Filings & Pleadings (with Sample Language), Discovery, Lay Witnesses & Experts, and Alternative Dispute Resolution.
Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.
Copied below are the materials I wrote for the section entitled “Discovery, Lay Witnesses & Experts.”
Discovery, Lay Witnesses & Experts
Discovery is an important part of virtually every divorce. There are a variety of ways to secure the information necessary to adequately navigate the client through the property division process. First and foremost, having the client secure and furnish the lawyer all of the documentation and information he has in his possession is the easiest and presumably fastest way to obtain it. If the client does not know what all is owed/owned by the parties, or cannot secure information and/or documentation, and/or is simply uncertain, it may be a good idea to conduct formal discovery. How complex or intense or comprehensive the discovery process will be depends on the client’s resources to sustain the discovery process, and the complexity of the particular case. More often than not the parties have a good idea of who s/he owns and/or owes and what the spouse has as well, so the discovery can be fairly focused.
A first step for an attorney to take after a client hires him for a divorce is to create some sort of list, spreadsheet, or chart of all the known assets or liabilities of the marriage that is easily sortable, readable, and modifiable, so that one can have a clear picture of the marital finances as information becomes available. When creating the spreadsheet, be sure to distinguish between premarital / separate property, joint (or comingled) property, marital property, post-marital property, and/or anything covered by a pre/post nuptial agreement. It is important to remember that just because one’s client’s name (or the spouse’s name) does not appear on a particular asset, does not mean that party does not have a marital interest or claim on that property in divorce. It is also wise to instruct one’s client to gather all documents in his/her possession as soon as possible before the opposing spouse takes them and/or disposes of them.
Discovery in the context of divorce is not substantially different, in terms of procedure and forms, from discovery in most other forms of typical civil litigation. Typical discovery requests consist of interrogatories, requests for production of documents, and admissions. It is worth noting that while discovery is generally permitted in divorce, it requires leave of court in other areas of family law (e.g. custody, support, etc).
For those unfamiliar, interrogatories are merely a list of questions to the other party asking for various information regarding the marriage and the property held by it. Requests for Production of Documents is pretty self-explanatory: it is merely a list of requests for particular documents regarding the marriage and the property held by it. Requests for Admissions are little unusual in divorce cases, but they are sometimes used. A Request for Admission sets forth a statement of purported fact, and requests the responding party to admit it, or deny it with specificity. Under Pa.R.C.P. 4014 admissions that go without a substantive response within thirty (30) days of service are supposed to be deemed admitted, so there is some pressure to respond to them, however court decisions under this Rule have removed most of its teeth, which has resulted in the hard thirty (30) day deadline having very little bite.
Responses to all discovery requests are, of course due within thirty (30) days per the Rules of Civil Procedure. If no responses are forthcoming after thirty (30) days, then one must remind the opposing party/attorney in good faith that the responses are due. If, after a reasonable time, the responses are still not forthcoming, then a motion to compel discovery (and for sanctions if appropriate, see P.R.C.P. No. 4019) may be necessary. Like any other form of civil discovery requests, the responding party can always object to a particular request as being overbroad or burdensome or some other objection, which can be resolved by a judge.
Of course, one need not always send the opposing party the discovery requests. Each party also has the right to issue subpoenas for documentation from third parties if the opposing party refuses and/or cannot furnish the requested documentation. Of course, a subpoena is typically for documentation that is not in the name of the client. Sometimes it may be more effective to send the opposing party a set of authorizations to sign along with the discovery requests. The authorizations can be for various banks or financial institutions (for example) giving the opposing party and/or his attorney permission to go to those banks or institutions directly to secure the desired documentation.
Finally, depositions are also a possible way to conduct discovery. A deposition is simply like an interview that is under oath and held before a stenographer. The attorney who requests the deposition may ask the person being deposed (e.g.: the opposing spouse) a variety of probing questions in order to gather information and data. A spouse is an obvious target for a deposition, but tax preparers, financial planners, and co-workers, among others, can also be good candidates for deposition.
- What to request
The things one can request in discovery may seem overwhelming at first as the possible options seem almost listless. It may seem obvious, but documents one should request should generally involve or reflect the assets, income, debts, and/or liabilities of the parties. Below are some suggested items about which one may issue a discovery request:
- Bank accounts (individually, jointly, or with a third party);
- this may include cancelled checks;
- savings, checking, CDs, money market accounts, etc;
- this helps with tracing money expenditures;
- This may give a lead to investigate accounts the other party has refused to disclose;
- Real estate (individually, jointly, or with a third party);
- mortgages and liens on the real estate;
- Dates of acquisition;
- Names on the deed(s);
- Businesses (e.g.: a landscaping business, or law firm, or pizza shop);
- This opens up a whole subset of discovery about the assets, liabilities, income, debts, of the business(es);
- Cars, boats, and other large items;
- Outstanding notes/loans for the same;
- Approximate current value;
- Dates of acquisition;
- Names on the title(s);
- Jewelry, art, collections, memorabilia, and any other personal property of any significant value;
- Stocks, bonds, investments for the most recent five (5) years;
- Pensions, 401(k)s, IRAs, retirement funds, annuities, defined pension plans, etc;
- Tax returns for the most recent five (5) years. These will include crucial information regarding:
- income from all employment;
- capital gains;
- investment distributions (e.g.: IRAs);
- unemployment compensation, social security, etc;
- W-2s and 1099s;
- Refunds (sometimes a party overpays taxes in order to receive an artificially large refund);
- Deductions (this may provide a lead to undisclosed assets);
- Pay checks / stubs;
- This is related to the “Businesses” noted above. If someone is self-employed, there is always a chance that what is being reported on a tax return regarding business income is not precisely accurate. As a result, discovery into some of the inner workings of a business may be illustrative. For example, if a spouse runs a pizza shop, then perhaps discovery into cash register receipts, supply purchases, payroll, and/or business purchases may be helpful to discern what the actual business income is;
- Any documentation of loans a party may have, especially the application for the loan which likely has financial disclosures on it. This will enable the attorney to compare and contrast the financial disclosures on the loan application with what the party claims;
- Copies of any and all bills, utilities, expenses, paid;
- Law suits, and other legal claims;
- Social media;
- This may reveal other relationships, employment, money expenditures, activities, locations, etc.
- Try to keep social media posts to a minimum;
- Looking at the public parts of someone’s social media accounts is fair game;
- Do not send a friend request (or something similar) to the opposing party, which would allow one to see otherwise private material;
- Access? This is balanced by probative value.
- Text messages, emails, electronically stored data (do not forget cellphones, ipads, etc, if relevant).
When it comes to social media, a client should be advised to be sensible and temperate. Avoid online fights, insults, openly discussing the divorce, or mistakenly posting something that could be “incriminating.”
Authentication of social media and text messages for use at a hearing is a new area of the law, so tread carefully. Simply having the right telephone number or user name on the text or post will not be sufficient in and of itself to authenticate the text or post as there is no way to confidently discern who sent it or posted it. It seems the Court will evaluate texts and social media posts on a case-by-case basis by taking a holistic view of the post/text with full consideration circumstantial evidence that could link the text/post to a certain person.
Finally, witnesses – both lay and expert – are often called upon to testify at a deposition or hearing. Lay witnesses can testify to what s/he has seen or heard regarding what the parties have done, spent money on, and/or said about their finances. For example, an employee of the spouse’s pizza shop may be able to testify as to how much business it does, where the money is kept, and/or how its finances are managed. Sometimes expert witnesses are required to discern or illuminate a couple’s financial picture. For example, a forensic accountant may be needed to piece together the disparate financial documents and evidences to form a coherent financial picture. Perhaps a tax preparer, or realtor, or accountant may be needed to shed light on a disputed economic issue. Of course, in the twenty-first century, it may also be necessary to have some sort of technology/computer expert to discern whether electronic information was deleted to altered.