All Aspects of the Discovery Phase of the Divorce Process
By: Bari Z. Weinberger, Esq.
Weinberger Law Group, LLC
After the initial pleadings are filed with the court, i.e. the Complaint or Counterclaim for Divorce, the case proceeds on what is known as a procedural track. This means that the court will assign the case a certain amount of time to conduct discovery. The number of days allotted depends upon the issues in the case. For instance, if the case includes a child custody dispute, a longer period is offered to complete discovery, since more information must be compiled than in cases where child custody is not disputed.
How Long Will A Divorce Case Take?
Many clients want to know how long it will take to get divorced, from start to finish. This question is impossible to answer, as the length of time varies significantly depending upon the subjective circumstances of each case. Under a court-imposed program called "best practices", resolution of a case should be derived within one year of the filing of the Complaint. Some important determining factors in estimating the length of a case are: the number of issues involved, the necessity of hiring experts, the level of participation by the other spouse, and whether or not each party has a true understanding of the financial situation. If one party refuses to provide legally demanded information (fails to comply with a discovery request of a party or order of the court), then delays will occur. These delays may not be foreseeable when the case begins, but they will certainly effect how long the case takes to conclusion. If an expert accountant is used, for instance, that expert's report may be delayed if it is being prepared in the midst of the busy tax season, when that expert's attention is diverted to tax-related deadline work. No matter what the case appears like at first glance, no one can possibly predict the true duration of a divorce case with any degree of certainty.
As indicated above, the intention in the State of New Jersey is that the divorce process will not exceed one year, from beginning to end. Most judges work very hard to move cases along efficiently through the system in order to achieve this ideal. Unfortunately, it is not uncommon for cases to extend beyond the one-year goal when there are heavily disputed issues or extensive discovery is required due to the complexity of the matter, such as if a business valuation is required.
What is the Case Information Statement?
The degree of discovery that is necessary in a divorce case often depends upon the extent to which the parties have assets and debts, and the accessibility of proof of the existence of those assets and debts. For instance, the discovery phase generally begins with each party completing a document known as a case information statement (CIS). The CIS is an all-inclusive financial form, which provides a myriad of important details, including names and birth dates of the parties and the children, addresses, employer information, personal identification information and past and present income information. The CIS also sets forth any and all assets and liabilities, including real estate interests, bank and securities accounts, motor vehicles, business interests, pensions, savings plans (such as IRA and 401k plans), other retirement accounts and employment-related assets (vested and non-vested), mortgage and home equity balances, automobile loans, credit card debt, etc.
The form also requires each party to disclose what the monthly budget is for that party and their dependents. The budget is a monthly itemization of all expenses, including shelter expenses, whether it is for a rental apartment or an owned home, such as monthly payments, all utility charges, insurance costs, taxes, and the like. The budget also requires detailed identification of all transportation and personal expenses, including car payments, gasoline costs, food expenses, entertainment costs, even hair care. It is an extensive budget form, designed to provide a detailed and closely estimated itemization of the true lifestyle of the parties. This helps parties calculate how much they spend each month versus the amount of available income that exists, which will show if they will experience a shortfall in funds once the real income is applied toward their living expenses. Sometimes when parties physically separate and two households need to be maintained with the same amount of total available income as they originally applied toward their one joint household, a deficiency of funds is realized and the parties must determine where they can make up the financial difference, such as through the sale or liquidation of an asset.
What are Interrogatories, Notice to Produce Documents and Depositions?
Some parties in divorce cases do not know their true financial status because it may have been his or her spouse who typically handled those affairs. Therefore, it is often useful to serve upon the other party what is known as Interrogatories and Notice to Produce Documents. These two discovery tools require the person receiving them to answer an extensive questionnaire regarding all relevant issues in the case and to provide documents to prove their responses. An example of some of the questions asked would revolve around the health of the party, their education, employment and business background, along with their overall detailed financial situation. Documents required to be produced would include bank statements, cancelled checks, real estate sales contracts, partnership agreements, credit card statements, loan applications, tax returns, etc. This list of necessary documentation is likely to be extensive.
Once a party answers these interrogatories and provides responses and documents related to those answers, an attorney may be in a better position to thereafter limit the number of remaining questions that exist and offer clarity to an unaware spouse. Still, there are many times when the documents and answers provided are not enough to satisfy the discovery phase and more information is needed before a party could be expected to entertain a settlement negotiation or otherwise proceed to trial. This is when a party may choose to have their spouse, or even an expert or other person involved in the case, deposed. A deposition is where an attorney poses questions to another, who is placed under oath with a stenographer, who thereafter provides a written transcript of the "testimony".
Discovery could go far beyond the case information statement, interrogatories, document production, and depositions. There are numerous functions within the discovery stage of the case, which could not be thoroughly described in detail in this article. By way of example only, some parties elect to have their real estate appraised, while some parties have pensions valued. If spousal support or child support are in issue, some parties may want their spouse evaluated by a vocational expert to determine what income level should be imputed to them before a court makes calculated decisions as to support awards. Where custody of children is involved, psychological evaluations of the entire family are often performed. In cases where the parties own a business or professional practice, a forensic valuation may be necessary. Subpoenas are often utilized in an effort to obtain additional records.
Regardless of what is involved in each individual case, it is important for all parties to remember that this is not an overnight process. In fact, a case may have many levels within the discovery stage before enough information has been collected to piece the case together in such a way that can either enable parties to realistically settle the matter or prepare them adequately for trial before a judge. While discovery is often a long and expensive process, it is essential to provide each party with an accurate, global picture of their case so that they can make knowing and reasonable decisions while negotiating a settlement in their matter.
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