After a divorce or other family law case is filed, both parties are required to disclose certain relevant information and documents. See Rule 49, Arizona Rules of Family Law Procedure (ARFLP). In addition to the minimum disclosures which each party is required to make and entitled to receive from the other, the parties may seek additional information and documents using the discovery tools outlined in Rules 51 – 64, ARFLP. These tools include requests for written responses to certain questions, called “interrogatories”, and requests to produce documents.
Shockingly, sometimes one party is reluctant to provide the information and documents requested by his spouse. This failure to cooperate in providing needed information can bring a case to a standstill. Consider the situtation where the husband owns and operates a business which is a marital asset. In order to determine the value of the business for purposes of a divorce settlement conference and/or trial, wife needs to have the business appraised. Wife serves husband with a request for the documents (business financial statements, tax returns, etc.) which are required by the appraiser, but husband refuses to provide the documents. Wife is unable to proceed with the appraisal and is prevented from adequately preparing for trial due to husband’s refusal to cooperate. What is wife’s remedy?
Fortunately, Rule 65 ARFLP provides that if one party fails to make disclosure or respond to discovery requests, the aggrieved party may file a motion with the court to compel the disclosure or discovery responses. Along with the motion, the moving party/lawyer must file a separate written statement outlining how, “after personal consultation and good faith efforts to do so, counsel have not been able to satisfactorily resolve the matter.” Rule 65 (A)(1)(c), ARFLP. If the court finds the motion to compel has merit, the court will order the non-compliant party to provide the requested information by a date certain and will often impose a sanction, such as ordering the non-compliant party to pay the moving party’s attorney’s fees. If the non-compliant party still refuses to comply, the court may impose more serious sanctions, including proceeding by default against the non-compliant party. Rule 65 (B), ARFLP.
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