The divorce process in New York has many steps. However, one of the most crucial steps is discovery. Once all the initial filings have been made, the case enters into the discovery phase. Governed by the Civil Practice Law and Rules (“CPLR”), this is a period of time in which each party has the time and opportunity to gather information and material facts from and about the other party. Gathering all of the information that impacts the case gives both attorneys the facts needed to build their case.
Discovery is required to level the playing field and give both sides complete access to all relevant information. It is also hoped that by placing all of the facts in both parties’ hands before a trial that they will have time to review them and negotiate a settlement.
Statement of Net Worth
Perhaps the most important item in the discovery process in New York is a form called the Statement of Net Worth.
Each party is required to fill out this form. It is a very comprehensive document that asks for details about:
- Biometric information such as dates of birth, addresses, occupations, and Social Security numbers for the parties and any minor children of the marriage.
- Assets transferred in the past three years (including gifts and donations)
- Bank accounts
- Business ownership and interests
- Child support for other children
- Clothing and personal belongings
- Contingent interests
- Credit cards
- Education costs
- Household expenses, utilities, food, etc.
- Household furnishings
- Income from all sources
- Insurance including life insurance
- Margin accounts
- Medical costs
- Notes payable
- Real estate
- Retirement assets
- Securities and stock options
Both parties must complete the form and share it with the court and the other side. This document is very useful if it is completed fully and honestly as it gives both sides access to the other’s financials. It also allows the court to understand the parties’ financial situations.
Other Discovery Methods
While the Statement of Net Worth is a good starting point, in a complex divorce it is only just that – a starting point. Your attorney will require vast amounts of other information about finances, but also about other aspects of your marriage and your spouse’s life.
Your attorney has a variety of discovery methods authorized by New York state in their toolbox to get the information needed during discovery:
- Demand for Expert Witness List: Your attorney can request the list of witnesses your spouse’s attorney intends to call at trial
- Deposition or Examination Before Trial (EBT): Your attorney may choose to depose your spouse or other witnesses. Out-of-court testimony is taken under oath in front of a court reporter.
- Interrogatories: Written questions sent to your spouse and their attorney which must be responded to in writing
- Notice of Discovery and Inspection: Your attorney can require your spouse to allow them to view financial records and documents such as deeds, titles, employment records, passports, loan applications, and more.
- Notice to Admit: This is a request that the other party admits certain facts so that they need not be proven at trial.
- Subpoena: A legal document that requires a third party to turn over information, records, facts, and details to your attorney. Examples might include bank records, business contracts, or school records.
Breadth of Discovery
While discovery is often focused on the financial aspects of the case, it can also be used to obtain information relevant to custody and grounds for divorce. Any document or information involved in your marriage is generally available for discovery. Information that dates prior to the marriage may also be relevant, although this varies on a case-by-case basis.
Objections can be made to discovery requests for information which is
- In the possession of someone else (such as a deed or title to property no longer owned by the party)
- Irrelevant (information that does not pertain to any of the issues in the case)
- Privileged (such as that covered by doctor-patient confidentiality)
- Unduly burdensome (for example, information that would take months to accurately collect)
Why Discovery is Crucial
Although New York state requires each party to provide complete financial disclosure, there are always people who try to beat the system. The discovery process gives your attorney the tools necessary to verify all of the information your spouse provides and then to dig deeper to find information that is hidden or not disclosed. There is not always a nefarious intent – things can be overlooked or forgotten. It is also possible that your spouse and his legal team are attempting to withhold information or prevent your legal team from accessing it.
Discovery allows your attorney to obtain, see, and analyze all of the data that could possibly impact or inform your case. They can build their case and prepare for trial based on this information. Discovery information can also be used to create a settlement. Once all of the facts come out, it may be beneficial for one party or the other to avoid a trial.
Failing to Cooperate
Discovery is not optional. If an attorney seeks information, the other side is required to provide it. Failing to respond to discovery can lead to being held in contempt of court. If you or your attorney do not cooperate with discovery and the other side has to ask for the court’s intervention to gain compliance, you could be ordered to pay your spouse’s attorney fees related to that matter.
Discovery is the bedrock of a divorce case. Without all of the facts and data, an attorney cannot advise their client or prepare a case for trial.