Under the Family Code in California the court is required to divide community property and community liabilities equally between the parties, unless the parties enter into a property settlement agreement that sets forth a different arrangement.
One task for the attorney and the client is to identify and place a value on all community assets and liabilities. If this information is not readily available, or if for some reason the accuracy of the information is suspect, the law permits various procedures of investigation that are commonly called "discovery".
Discovery may consist of informal investigation, voluntary exchanges of information, and verification of assets and liabilities. More complicated discovery may consist of depositions, interrogatories, and/or requests for production of documents of the other party.
The formal types of discovery and their advantages and disadvantages are:
1.
Depositions. Depositions take place in an attorney's office. Only the attorneys in the case, the witness and a court reporter are required to be present. The parties may be there. The witness is asked questions under oath, and the questions and answers are later transcribed. Depositions give you the opportunity to have the other party or witnesses placed under oath and cross-examined. The examination is subject to certain rules of evidence and may be used in trial. The major disadvantage is one of cost. You incur the expense of your attorney preparing for and taking the deposition, the expense of the deposition itself, and the attorney's review and analysis of it after it is transcribed. The court reporters who take the deposition charge for their services. When an expert is deposed, in addition to the attorney's fees and deposition fees, you must pay the expert a reasonable fee for his or her time attending the deposition.
2.
Interrogatories. Interrogatories are written questions that are mailed to the opposing party. The answers must be in writing and mailed back to the party propounding the interrogatories. Interrogatories are far less expensive than depositions, although time has to be spent preparing the interrogatories and reviewing the answers. Interrogatories can only be sent to the opposing party -- they cannot be sent to experts or other witnesses. The disadvantage of interrogatories is that the answers to the interrogatories are prepared by the attorney rather than the client. By way of contrast, in a deposition, you are able to ask the questions directly to the client, and the client does not have the opportunity to consult with his or her attorney to frame the answers.
3.
Subpoenas. A subpoena is a court order directing parties and witnesses to appear at a certain time and place, or to appear with documents at a certain time and place, or simply to produce documents at a certain time and place. A subpoena is a very effective way to obtain documents. The drawback is that a subpoena must be personally served upon the person or the custodian of the records that you are seeking. This can be a problem if the person does not want to be served. It also can be costly if a process server has to spend time looking for the person to be served.
4.
Request for Production of Documents and/or Inspection of Places or Things. This is a very effective means of discovery. It permits us to obtain documents from a party to the action, or to inspect places or things (for example, real property, stamp collections, coin collections, etc.). If we cannot obtain the other party's cooperation in our need to appraise assets, we can always resort to a request for inspection. Similarly, we can serve a request on the other party to provide documents of access to documents. This is an inexpensive means to discovery, but it is limited to parties; a subpoena allows us access to documents and things belonging to any person or entity. The time limitations are must stricter for request for production of documents than they are for subpoenas. Whether documents are produced in this manner or by subpoena, time has to be spent reviewing and analyzing them.
5.
Request for Admissions. Requests for admission are a written request sent to the other party asking him or her to confirm that a specific fact is true or that a specific document is genuine. The answers must be in writing under oath confirming or denying the truth of the fact or the genuineness of the document. The advantage to requests for admission is that you do not need to prove that the admitted fact is true or that the admitted document is genuine. If the other party denies the fact or doesn't admit the genuineness of the document and you prove either to be true at the hearing or trial, then you can ask the Court to order the other party to pay your fees and costs for proving the fact or genuineness of the document.
6.
Motions for Physical and Mental Examinations. In certain instances, we may wish to have the other party examined by a doctor or mental health professional. Like requests for production of documents, requests for inspection of things, and interrogatories, this form of discovery is limited to parties. Unlike other forms of discovery, we need to have the court's permission in order to proceed with this form of discovery. We have to file a motion and show good cause to have a physical or mental examination of the other party. In the right case, this can produce significant information; however, it is a costly form of discovery in that the examining physician or mental health professional has to be paid. There are some further ramifications in terms of waivers of privilege which need to be considered before one proceeds with this form of discovery.
7.
Vocational Evaluation. This is another form of examination available only in dissolution cases. Again, unless there is a stipulation, we must file a motion and show cause to have a vocational evaluation of the other party. The evaluation is performed by a vocational consultant who provides testimony regarding the other spouse's ability to work or earning capacity. This is especially useful when a major issue in the case is spousal support.
8.
Other Experts. Further discovery can include the hiring of appraisers to evaluate property, investigators to locate property, accountants to examine books and records (including bank accounts, stock, and business records), pension actuaries to value deferred compensation, and other special consultants as the facts may require to assist us in conducting the case and preparing for trial.
The extent, description, and value of each party's separate property can also be an important factor in determining a fair and equitable property settlement, spousal support, and child support arrangement. Discovery is available with respect to separate property assets as well as to community property assets.
Discovery takes time and costs money. The degree to which discovery is necessary in any given case depends in part on the complexity and size of the community property estate, and on whether the client has sufficient knowledge of the estate to rely on in place of discovery. The time and expense of discovery is sometimes justified by what is learned. In other cases, it may only confirm what was already known or believed.
Whether to engage in formal or informal discovery and -- if formal -- what types of discovery, is a tactical decision which has to be made in every case.
In view of the above, one of the important decisions that must be made by the client and the attorney in each dissolution case is whether discovery is needed and to what extent. Obviously, the safest practice in all cases would be to utilize maximum discovery. However, in a given case, the client may feel that the time and expense of discovery is not warranted for one of the reasons stated above.