In any type of legal proceeding, discovery is the most important part of the case. Discovery is the process of gathering information and documents relative to each party’s position in the case. Without discovery, an attorney cannot negotiate settlement terms or prepare for a trial. Discovery might be voluntarily, meaning the parties freely provide each other with any requested information or documents. If the materials are not voluntarily provided, your attorney can gather them using discovery tools such as demands and notices, subpoenas, interrogatories, and depositions.
In a contested matrimonial proceeding, both parties are required to disclose under oath all their expenses, income, assets, and liabilities by filing a Statement of Net Worth. The Statement of Net Worth is where the process of discovery begins.
When the other party files their Statement of Net Worth, your attorney will review it and ask you to do the same. In that review, your attorney will work together with you to determine what information and documents are needed to support or contradict what is in the Statement of Net Worth. For example, your spouse may disclose that they have a separate bank account or your spouse might fail to disclose certain accounts all together. Instead of relying on what is disclosed by your spouse, your attorney will likely ask for documents relative to those accounts. This can be accomplished in one of two ways; either by sending a “Notice to Produce” to opposing counsel or by sending subpoena directly to the record holder (such as a bank or employer).
Your attorney can send Notices and Demands to receive almost any type of information and documents. The most common records that are requested are financial statements, copies of contracts, verification of income and debts, business records, and proof of expenses. Your attorney might also send a Demand for certain evidence the other party intends to use against you at trial. Demands typically include requests for copies of photographs, statements of the parties, video and audio recordings, and list of witnesses to be called a trial.
If your attorney sends a Demand or Notice to opposing counsel, it will require your spouse to turn over anything requested within 20 or 25 days. Once discovery materials are received, your attorney will review them and provide you a copy to review. At that point, your attorney will have a meeting with you to discuss what was received, formulate a settlement proposal or counterproposal, or proceed with preparing for a trial.
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Your divorce attorney will be your primary point of support and knowledge during the division of assets and debts. While the ideal is to settle outside of court, disputes may need to be resolved with the help of a judge. Therefore, it’s important to have an attorney with trial experience in addition to extensive knowledge about the distribution of assets and debts. Call Bates Family Law today at (585) 433-4661 to schedule your free consultation.
