The process of gathering evidence and information to be used in court is called “discovery.” Discovery is an important step in the divorce case process. Thorough and careful fact-gathering during the discovery stage of a case can lead to success at trial, just as ineffective discovery weakens the trial presentation and compromises the case.
Rule 49 of the Arizona Rules of Family Law Procedure (“ARFLP”) requires every party to a family law case to make certain minimum disclosures. For example, in divorce cases, each party must disclose copies of his bank statements, retirement account statements, and credit card statements. See ARFLP Rule 49(E) and (F). In cases involving child support, each party must complete an affidavit of financial information and must provide proof of his income, including copies of pay stubs, tax returns, W-2 forms, and similar information and documents. ARFLP Rule 49(C). No formal discovery requests are required to obtain this information. Disclosure of the information outlined in Rule 49 is mandatory, and a party’s failure to make the mandatory disclosures may result in the court’s imposing serious sanctions against the non-compliant party.
The discovery tools outlined in ARFLP Rules 51-65 allow a party to seek much more information and documentation than the minimum disclosures required by Rule 49. Rule 52 allows a party to subpoena documents from a third party. For example, if a woman suspects her husband has bank accounts he has not disclosed, she may subpoena all of her husband’s bank account information and statements from the bank where she suspects he is maintaining the secret accounts. Rule 57 allows one party to take the deposition of the other party. A deposition is an under-oath question and answer session where one lawyer gets to ask the opposing party virtually any question which is relevant to the subject matter of the case. Although depositions are expensive, in some cases a deposition transcript can be a powerful weapon at trial. Rules 60 and 61 allow a party to require the other to respond in writing to specific written questions, and Rule 62 allows for one party to request specific documents or categories of documents from the other party.
In addition to the methods outlined above, discovery includes involving expert witnesses to gather or produce information to be used at trial. For example, in a child custody case, one or both parents may hire a child custody expert, usually a psychologist, to evaluate the parents and the children and make recommendations in writing and at trial regarding the child custody and parenting time issues. Appraisers may be employed to appraise real estate, businesses, classic cars, artwork, jewelry, and other valuable assets. In a spousal maintenance case, where the parties’ earning capacities are contested, either or both parties may hire vocational experts to perform evaluations and testify at trial regarding the parties’ earning potential.
In any contested divorce case, thorough discovery is essential. It is not only crucial to an effective trial presentation, but it also paves the way for meaningful settlement discussions. Husbands and wives are more likely to reach a settlement when both feel they have all necessary information to evaluate their cases, including the strengths and weaknesses of their cases often exposed by proper discovery.
Copyright © 2012 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.