Saturday, May 7, 2011

Discovery Methods Part I

In any legal proceeding in Family & Marital law, be it a Divorce action, Paternity action, Modification of Child Support and/or Modification of Contact with of Children, both litigants are equipped with the ability to discover information from the other prior to any hearing, mediation, trial or any other proceeding in the case. Normally, this process called “Discovery” immediately follows the filing of pleadings in the case. The acquisition of information is vital to the proper preparation of a case.

Discovery affords each party not only the ability to determine the financial status of the other party but also extends to questions pertaining to the other party’s interests in sharing time with the minor children, the employment by the other party of a private investigator and/or other experts which the other party may intend to use in the proceedings.

The questions put forth in discovery are not limited to information which is admissible at future proceedings. In fact, the requests need only seek to obtain information which may reasonably lead to the discovery of admissible evidence. There are several different forms of discovery which include the following:

1. Request to Produce Documents

In this request, a party normally seeks to obtain financial documents from the other party for the purpose of determining their income, assets and debts. Such information is essential to a determination of child support, alimony and the equitable distribution of the marital estate. Typical documents sought in a request to produce are filed personal income tax returns, W-2s, 1099s, K-1s, etc; corporate or business tax returns including all attachments filed therewith, recent pay stubs (if the party is employed) or the ledgers and accounts of any business owned in whole or in part by the other party. Loan applications over the past several years may reveal that a party may state inflated income under oath to secure the loan which raises serious questions regarding that party’s actual income. In such an instance, a deposition or request for admissions (discussed below) may be necessary to follow up on a discrepancy. Monthly credit card statements, bank statements, retirement account statements, pension information, etc. are also commonly sought.

2. Interrogatories

Interrogatories are written questions propounded on the opposing party which most often seek information which augment the production of documents and also provide additional information. While interrogatories are limited to the scope of written questions, the answers to the questions must be answered under oath and notarized. One major benefit of using interrogatories as opposed to taking a deposition is the additional substantial expense of a deposition. Once the written responses are received and reviewed, further sets of interrogatories may be propounded to follow up on the initial responses.

3. Depositions

The taking of a deposition is normally employed after receiving documents produced and the answers to interrogatories. My policy is normally to wait until the parties have had at least one opportunity to reach an agreement at mediation (a mandatory process before noticing a case for trial) before scheduling a deposition, but this will depend on the thoroughness of production and the frankness with which the interrogatories were answered.

Depositions are taken before a Court Reporter who records everything stated on the record. Both parties will typically have their counsel with them at a deposition. The party taking the deposition will spend several hours with counsel preparing questions for a deposition and will also determine if additional documents be produced at the deposition. If a party wishes to request additional documents, a subpoena duces tecum will be sent with the notice of deposition requiring the party being deposed to bring specific documents with them to the deposition. Depositions normally last several hours and with the cost of the court reporter and two attorneys may be financially prohibitive in some circumstances.

4. Requests for Admissions

This method of discovery is normally employed when a party has a suspicion that the other party may be holding back certain specific information relevant to the issues in the case. Before going to the expense of investigating such a suspicion, a party may send a request for admission to the other party asking them to admit to the authenticity or existence of certain information/documentation. The party receiving such a request must be very careful to honestly respond to these requests under oath because if they deny a request which is honesty should be admitted, and the party thereafter discovers evidence showing the request should have been admitted, the party sending the request will be entitled to recovery the attorney’s fees and costs associated with investigating and acquiring evidence that the request should have been admitted. In as much as this expense may be prohibitive, the responding party will normally make a proper admission rather than take the risk of incurring the expense.

In Part II, coming next week, I will explore the ramifications of failing to deal thoroughly in discovery matters, the procedure and the approximate time involved in moving through this process to mediation and beyond.

Friday, May 7, 2010

Quasi-Contested Cases & Mediation

I have been out of town attending to an ill family member, and apologize for the delay in bringing this topic to you.

Many clients who consult with me about an impending divorce inform me that they believe their matter can be handled in an uncontested manner. I always suggest that handling an emotionally charged matter such as a divorce in this way is recommended, but I caution that it must be done carefully and thoughtfully. If minor children are involved it may be more complicated, but it is well worth exploring.

The first thing that is required is for both parties to complete a Family Law Financial Affidavit which is executed under oath. The parties then share this information. These documents are carefully reviewed, and if any information is questioned, an informal request for supporting documentation is sent to the other party or their counsel. By requiring each party to file this affidavit, the other party is protected in the event that misinformation is contained therein. Consequently, if a party discovers after the entry of a Final Judgment dissolving the marriage that the other party misstated facts, the case may be reopened and the Court will be able to redistribute the distribution of assets and debts as well as support awards and fee awards. By filing the affidavit under oath, the party doing so is also subject to sanctions for perjury.

Once all vital information is gathered, a Marital Settlement Agreement is drafted and then sent to the other party or their counsel for review. Many times the terms contained in the agreement are renegotiated. It does not take long to determine whether or not a truly uncontested case is viable.

If the parties are unable to agree after counter-offers are presented, the case will be considered a contested one to the extent that additional discovery is required and mediation is set with a certified mediator. Parties have the option to use County Mediation or to agree on a private mediator. Although private mediators cost substantially more than the County process, it is my experience that private mediators are more likely to obtain results.

If the parties are able to reach an agreement at mediation, (mediation may be continued and a second mediation held if the parties are making progress,) then the case is essentially over. The Mediated Agreement is incorporated into a Final Judgment and a Final Hearing is held when the Court dissolves the marriage. However, if mediation results in an impasse, the case is noticed for trial, which is an expensive and time-consuming process. The good news is that, in Florida, approximately 85% of cases taken to mediation are resolved at that point in the process.

The next blog will address the various forms of discovery available to litigants, and later I will discuss the use of expert witnesses in the process, including experts who limit their analysis to a proper parenting plan for minor children.

Monday, February 1, 2010

The Procedure of Dissolving a Marriage

Part I. The Uncontested Divorce

I prefer to personally speak to any prospective client who contacts my office seeking to dissolve a marriage. Invariably, these prospective clients have several questions which they consider extremely important. Once I have determined that they are seeking counsel for a marital/family law matter, we speak for about 5-10 minutes before setting a time for the initial consultation. In 28 years, the most asked question is: “How much will this cost and how long will it take?” Although such a question seems straightforward, there is no simple answer. The reason? Divorces may take several different courses and time and cost are directly related to procedure.

I first try to determine the level of communication between the parties. If I am informed that the parties discuss their problems and work to cooperate in resolving their problems, I suggest that they may be able to proceed amicably through an “uncontested” dissolution process. In this way, they will save both time and money. On its face, this seems to be the best method for resolving a dispute; however, there are obstacles which may impede such a process. Whether or not a party may proceed uncontested (or through the process of collaborative law) depends largely on communication. It requires both parties to be forthcoming in the disclosure of all information relevant to the proceedings. Beyond communication, both parties must disclose all financial information requested by the other. This is accomplished by the filing of a notarized Family Law Financial Affidavit and supporting financial documentation. Without getting into great detail, this requires the sharing of the past 3-5 years of federal tax returns (W-2s, 1099s and K-1s), pay stubs (or the ledgers for businesses owned by either party, retirement benefit statements, credit card statements, loan applications, bank statements, etc. If a party refuses to provide such requested information, the requesting party will be unable to ascertain the equity of proposed settlement agreement.

However, if the parties concur that they both understand the extent and nature of their assets and debts, there is no purpose in proceeding beyond the mandatory financial affidavit.

If the parties have minor children, and I am informed that the parties have agreed to a specific Parenting Plan (setting forth the specific time sharing of minor children), many times I am asked if they may agree to a reduced child support award. I point out that the Court will require that child support must conform to the guidelines set forth in the statute. Financial support for a minor child(ren) can not be negotiated away by the primary time sharing parent. It is the child who is entitled to the support. A 5% variance is permitted, but most questions seek a substantial variation in the guideline amount. Child support in Florida is primarily driven by the following factors: {A} the income of the Mother, {B} the income of the Father, {C} the cost of day care, before school care and/or after school care and {D} the cost of health insurance premiums specifically identified for the minor children.

Even in an uncontested matter, the Court will require that a Child Support Guideline Worksheet be filed at the final hearing (required in most judicial districts including Orange County, Florida) and which the Judge will cross match with the provision in the Marital Settlement Agreement/Final Judgment before entering an order dissolving the marriage.

Although I encourage clients to attempt to resolve their problems without the need for Court intervention and/or protracted litigation, caution must be used in long term marriages and ones involving minor children. Unless my client is absolutely certain of all of the financial resources of the marriage, it is best to acquire this information prior to entering into an agreement. While the financial affidavit is mandatory, the exchange of financial documents may be pared down to just the questionable aspects of the marriage. It is always best to be prudent and acquire necessary information rather than entering into an agreement which one may regret in the future.

NEXT IN THIS SERIES: Quasi-Contested Cases & Mediation