Disclosure and Discovery in Divorce
Disclosure
The legal term DisclosureFollowing Rule 49, this is when you provide documents, evidence, and information regarding your case to the other side. Any evidence you want to use must be disclosed to the other side. Disclosure is not filed with the court.Read more about Disclosure refers to the portion of the litigation process where each PartyAn individual, entity, or the state that either brings the lawsuit or is required to respond to the lawsuit. See ARFLP Rule 3(f).Read more about Party in the suit is required to disclose any documents that may be considered RelevantAs defined by Black’s Law Dictionary, “Logically connected and tending to prove or disprove a matter in issue; having appreciable probative value — that is, rationally tending to persuade people of the probability or possibility of some alleged fact.” (Black’s 11th ed., 2019).…Read more about Relevant to the case going to court. This stage normally occurs after each party has made their initial statement in their case.
Discovery
This is the formal process of exchanging information between the parties about the witnesses and evidence they’ll present at TrialA court hearing in which evidence and testimony are taken, and the Court makes a final determination of the issues raised in a petition. Trials and evidentiary hearings are somewhat synonymous, but the difference is one of scope: Evidentiary hearings are more limited in scope…Read more about Trial.
Together, disclosure and DiscoveryGoverned by Rules 51 to 65 of the Arizona Rules of Family Law Procedure, this is the formal process of acquiring information that you need to put on your case. This includes options like interrogatories (written questions), depositions, subpoenas, and Requests for Productions.…Read more about Discovery are the BasisA tax term describing the price a taxpayer paid to acquire a property. When a property or asset is sold, basis is deducted from the selling price to determine whether there is a taxable gain or loss. For items awarded in a divorce, those items are not taxed as part of the divorce…Read more about Basis of the evidence used/required to make a legal argument. In other words, an attorney’s ability to make a case and support it with evidence. This is often the biggest skill-gap between an attorney and a layperson.
Attorneys know how to get documents that most self-represented persons do not know how to obtain. Moreover, attorneys know what documents they need to acquire and how to use those documents to build a case. Finally, perhaps most importantly, attorneys know how to disclose and prepare those documents so that they may actually use them at trial.
DISCLOSURE
DisclosureFollowing Rule 49, this is when you provide documents, evidence, and information regarding your case to the other side. Any evidence you want to use must be disclosed to the other side. Disclosure is not filed with the court.Read more about Disclosure means that, well in advance of TrialA court hearing in which evidence and testimony are taken, and the Court makes a final determination of the issues raised in a petition. Trials and evidentiary hearings are somewhat synonymous, but the difference is one of scope: Evidentiary hearings are more limited in scope…Read more about Trial, you give a copy of what documents you want to use at trial to the other side. It also means you tell them what witnesses you are going to call, including the parties involved.
There should be no surprises at trial. Everyone should go in expecting that what they’ll see and what they’ll hear is already known to them. (Be aware: just because a document has been disclosed doesn’t mean it must be used and just because a witness has been disclosed doesn’t mean that person must be called).
Simply put—you want to put on a case, you need to abide by the disclosure rules. Breaking the disclosure rules is one of the fastest ways to lose your case and not allow evidence you need to be used during trial.
Rule 49 of the Arizona Rules of Family Law Procedure is the rule for disclosure. Here are some of its highlights:
- Imposes on every PartyAn individual, entity, or the state that either brings the lawsuit or is required to respond to the lawsuit. See ARFLP Rule 3(f).Read more about Party a “continuing duty” to disclose. Rule 49The family law rule for disclosure of documents and witnesses. This rule must be followed; otherwise, the opposing party may object to evidence presented at trial on the basis on non-disclosure. See ARFLP Rule 49.Read more about Rule 49(b)(2)(A).
- Requires parties to “disclose information in the party’s possession and control, as well as information that the party can determine or acquire by reasonable inquiry and investigation.” Rule 49(a).
- Requires first disclosures to be made within 40 days of an AnswerAn Answer is also known as a Response to a Petition; it sets forth the Respondent’s issues on a Petition.Read more about Answer to a PetitionThis is a court document that someone files to start a case.Read more about Petition being filed. Rule 49The family law rule for disclosure of documents and witnesses. This rule must be followed; otherwise, the opposing party may object to evidence presented at trial on the basis on non-disclosure. See ARFLP Rule 49.Read more about Rule 49(b)(1).
- Requires, thereafter, parties disclose evidence within thirty (30) days of receiving it. Rule 49(b)(2)(B).
- Explains what must be disclosed for custody (i.e., Legal Decision-MakingThis is the right to make decisions on behalf of the child when it comes to decisions involving the child’s health, education, religion, or personal care. It does not include the right to dictate the child’s parenting time schedule or place conditions on the other parent’s time.…Read more about Legal Decision-Making and Parenting TimeThis is what it sounds like—this is when it’s the parent’s time with the child(ren). See A.R.S § 25-401(5). Prior to 2012, it was known as physical custody.Read more about Parenting Time), Child SupportBy law, every person has a duty to support their biological or adopted children. See A.R.S § 25-501(A). This applies without or without a court order. The term “child support,” though, generally refers the Court-ordered amount one parent is required to pay to the other parent.Read more about Child Support, Spousal MaintenanceThese are payments made from one spouse to another when one spouse cannot financially meet their reasonable needs on their own. The law permits spousal maintenance (or alimony as it’s called in other states) for several reasons—to help maintain the lifestyle the parties enjoyed…Read more about Spousal Maintenance, and the Division of PropertyA general term referring to how the parties’ debts and assets will be allocated (divided) in a divorce decree.Read more about Division of Property and debts in a divorce). Rule 49(d)-Rule 49(i).
- Explains that disclosure is given to the other party, but it is not filed with the Court. Rule 49(k).
DISCOVERY
Discovery is the process of obtaining documents you need from other people to support your arguments/claims, whether it is your opposing party or a third-party unrelated to the case.
Many self-represented persons often find it difficult to get any documents from the other side. If, say, the opposing party is unwilling to disclose their salary to you, DiscoveryGoverned by Rules 51 to 65 of the Arizona Rules of Family Law Procedure, this is the formal process of acquiring information that you need to put on your case. This includes options like interrogatories (written questions), depositions, subpoenas, and Requests for Productions.…Read more about Discovery may provide the answer. You can serve them with Uniform InterrogatoriesThis is a set of pre-written questions that one party can send the other party to answer under oath. The uniform interrogatories get their name because the questions do not vary from case to case.Read more about Uniform Interrogatories and Requests for Production, which require that person to AnswerAn Answer is also known as a Response to a Petition; it sets forth the Respondent’s issues on a Petition.Read more about Answer a pre-set series of questions, under OathWhen a witness is sworn that they will tell the truth, the whole truth, and nothing but the truth. Those conscientiously objecting to an oath may enter into a solemn affirmation instead under ARFLP Rule 15. See Solemn Affirmation.Read more about Oath, within 40 days and produce the documents requested. One of those questions asks them to answer how much IncomeAs defined by A.R.S. § 25-500(6), “any form of payment owed to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers' compensation, disability payments, payments pursuant to a pension or retirement program and interest.” See also child…Read more about Income they make.
A Request for ProductionThis is a discovery tool where a party asks the other party to produce certain documents. ARFLP Rule 64 governs Requests for Admission.Read more about Request for Production requires them to provide proof of their income by providing you with their tax returns, W-2’s, pay stubs, benefit statements, etc.
Sometimes, you might not trust the person to give you accurate financial information. In that case, if they are employed, you can SubpoenaThis is a discovery tool where a party can demand a person to appear as a witness or hand over documents. A subpoena is a form that party fills out and takes to the Court where it will be stamped as a court order through the recipient of the subpoena or the other party may…Read more about Subpoena their employer for a copy of their records.
You could also require them to answer questions under oath at a DepositionThis is where a party is able to ask the other party, another witness (with leave of court), or a court-appointed professional questions under oath. Depositions generally can last a maximum of four hours. The person requesting the deposition must provide and pay for the services…Read more about Deposition or provide written statements under OathWhen a witness is sworn that they will tell the truth, the whole truth, and nothing but the truth. Those conscientiously objecting to an oath may enter into a solemn affirmation instead under ARFLP Rule 15. See Solemn Affirmation.Read more about Oath in a Non-Uniform Interrogatory or a Request for AdmissionThis is a discovery tool where a party asks the other party to admit to certain facts under oath.Read more about Request for Admission.
You might wonder what if the other side doesn’t respond. Then they run the risk of getting hit with SanctionsPenalties imposed by a court for improper conduct, such as withholding information a party is required to hand over. The sanctions can include paying attorney's fees, not being allowed to defend certain positions, having to take certain classes, and, in limited circumstances (and…Read more about Sanctions. In that simple example, it is easy to see the options discovery provide. Generally speaking, these are options of which attorneys are aware and most lay persons are not.
Related Pages and Posts:
Divorce in Arizona (state48law.com)
High-Asset Divorce (state48law.com)
How to Avoid “Going to Court” When Getting Divorced (state48law.com)
