Disclosure and Discovery in Divorce
The legal term disclosure refers to the portion of the litigation process where each party in the suit is required to disclose any documents that may be considered relevant to the case going to court. This stage normally occurs after each party has made their initial statement in their case.
This is the formal process of exchanging information between the parties about the witnesses and evidence they’ll present at trial.
Together, disclosure and discovery are the 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 means that, well in advance of 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 party a “continuing duty” to disclose. 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 Answer to a Petition being filed. 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-making and parenting time), child support, spousal maintenance, and the 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 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, discovery may provide the answer. You can serve them with Uniform Interrogatories and Requests for Production, which require that person to answer a pre-set series of questions, under oath, within 40 days and produce the documents requested. One of those questions asks them to answer how much income they make.
A 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 subpoena their employer for a copy of their records.
You could also require them to answer questions under oath at a deposition or provide written statements under oath in a Non-Uniform Interrogatory or a Request for Admission.
You might wonder what if the other side doesn’t respond. Then they run the risk of getting hit with 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.