Contested Divorce Discovery In New York

Discovery Process

Discovery in a contested divorce is the process of disclosing information, so you don’t get to a trial with the other side whipping out evidence you’ve never seen before. In New York, this exchange can happen even before the preliminary conference. Parties may exchange supporting documents, like net worth statements. before the conference gets underway. Sometimes, this transfer of information even kicks off settlement negotiations.

Usually, the net worth statement is preliminary to settlement negotiations unless you are confident you know what the other side has. Perhaps you have filled out joint tax returns and know what assets the other side has. We need this statement for negotiations or a signed written waiver to move forward without it.

Other times discovery occurs before the preliminary conference to aid in settlement negotiations. Suppose either side wants to clarify specific issues, such as premarital credits, retirement accounts established before the marriage, or money spent in questionable ways. In that case, this information is often shared early on.

For instance, you request a premarital credit. You took money earned before the marriage to put towards the down payment of a house. Often, you need to get documentation to show both ends of the transaction. One needs to prove where the money came from and that the same money was put down at the closing. These special exchanges of information can happen early in the process.

According to the preliminary conference order, mandatory disclosure is three years’ worth of financial statements must be produced by both sides from all accounts:

• Tax Returns (& W-2’s/1099’s)
• Bank accounts (Checking & Savings)
• Credit card/debt
• Investments
• Retirement accounts (pensions, IRS’s, 401k’s, annuities, deferred comp, etc.)

If you do not have paper copies of your financial statements, it is suggested that you access your provider’s website and download the statements from there. If you do not have copies of your tax returns and cannot retrieve them from your tax preparer, then you should obtain the tax transcripts by accessing the IRS website (http://www.irs.gov/Individuals/Get-Transcript).

Parties often ask for more documentation than just the mandatory disclosure. This request is captured in the demand for discovery and inspection. Each side comes up with a list of documents they want produced by the other side. Often, there are about 20 to 30 categories of documents exchanged. If either side thinks the other is abusing that—asking for too much or irrelevant documentation—they have 20 days to object. If they miss the 20-day deadline, they generally have to answer it whether they like it or not.

Typical “discovery” demands include:

Demands for Discovery & Inspection. This is usually a vastly expanded list (beyond the “mandatory disclosure” list) of financial documents one must generally provide. Examples of other documents which are demanded are:

• Business Expense records
• Employment Contracts
• Records of Employment-Related Fringe Benefits
• Real Estate Documents, such as deeds & mortgage records.
• Records of Rental Income
• Documents Regarding Personal Property (such as receipts of large purchases)
• Insurance Policies & Statements
• Safe Deposit Box Documents
• Documents Pertaining To Gifts Or Gambling Winnings
• Estate Documents, Such As Copies Of Wills
• Personal Financial Statements, Such As Applications For Credit Or Loans
• Trust Documents
• Documents Pertaining To Business Interests, Such As Corporate Returns & Records.
• Vehicle Documents, Such As Titles & Registrations.
• Separate Property & Claimed Credits Documents
• Bankruptcy & Lien Records

1. Interrogatories. A list of up to 25 questions you must answer under oath.
2. Expert witness disclosure. A list of witnesses the other will produce at trial.
3. Audio, video, or pictorial evidence. Any evidence of this type that’s going to be introduced at trial.
4. Statements. The oral or written statements of the other party so that there are no surprises at trial.

In a contested divorce case, these typical demands for disclosure are made after the preliminary conference. If one has an objection to providing any of this disclosure, s/he must register the particularized objection within 20 days of getting served with the demand – otherwise the Court may rule s/he effectively waived the right to object.

More Information:

• New York Contested Divorce Settlements V. Trials
  
• How Is Child Custody Determined In New York?