Cost-Effective Divorce: Avoiding Discovery Non-Compliance
One of the costliest parts of divorce litigation is discovery. Written Discovery is the request for you to answer questions in detail about your income, assets, standard of living, etc. These request will ask you to produce a detailed list of documents usually spanning several years. There is no way around discovery if the parties wish to proceed in this fashion and it is often advisable to request documents so that you can confirm details about assets and liabilities and the value of the marital estate.
The best way to keep the cost in check is to provide all the documents that you are asked to produce. If you produce them electronically, produce them in a form that can be easily saved, reviewed, and summarized, and if you produce the documents in paper format, it is best to produce 3 copies of each document so that your attorney has a copy to provide opposing and a copy for the court in the event the case proceeds to trial. This will save your attorney time and you money in getting the documents ready to send to opposing counsel. It is also advisable to produce a word document listing all of the documents you are sending — that can be used in generating the production responses and again saves your divorce attorney time and you money.
Tips to Save Your Attorney Time and You Money on Divorce Discovery
1. Gather Important Financial Documents and Statements
When the divorce case begins, or before if you are aware it is coming, you should begin gathering your important documents and organizing them as described above. Bank Statements, Retirement Statements, brokerage account statements, mortgage statements, car notes, personal loans, credit cards and pay check stubs are the main documents you know you will need to produce. Other items such as copies of utility bills, insurance paperwork and taxes are also likely needed. Don’t wait for the other attorney to send out a request, get the paperwork together so that you can get them ready when needed efficiently and quickly. This will get your case through the system faster and again keep cost down.
2. Provide ALL Documents Requested
One mistake I often see is people gathering some documents but not others, missing statements, and, at times, refusing to produce some things. This leads to motions with the court compelling the producing and requests for attorney fees due to the time spent in court to compel you to produce. Those litigants who drag their fee and don’t do a thorough job in document production end up spending more time and money on compliance issues and is simply not cost effective.
3. Be Prompt Responding to Discovery Requests
If the other attorney asks for documents and you have 28 days to get them together — don’t wait the 28 days and ask for more time, get it done so that if there is a problem, they can notify you and you can rectify it before any motions have to be filed. Once a divorce is filed your life is an open book so there are not too many categories of documents that you do not have to produce.
4. Have Every Statement for Retirement Accounts
Another important matter for discovery that has saved clients tens of thousands of dollars is gathering every statement for their 401K or IRAs. The reason every statement is necessary is that the money accumulated during your marriage is marital but the money you put in prior to the marriage along with all gains on those funds is non-marital. You must have every statement to calculate the amount of gains on the non-marital share and can make a large difference in the division of the marital verses non-marital share.
I see many attorneys determine the marital portion of one of these retirement accounts by looking at the value on the date of the marriage and subtracting that amount from the total value of the account on the date of divorce leaving the remainder the marital value. However, the money you earned on your non-marital portion due to the market has been lost, you have given it away to your spouse as a share of the marital estate. It is important to get every statement to do this calculation. You cannot assume or guess; you must have the documents.
5. Have a Copy of Your Credit Report
Always get a copy of your credit report. This will give you a full picture of all joint accounts and include accounts you may not have been aware of and any credit problems. I often request opposing to provide a copy of their client’s credit report as well.
Promptly Comply With Discovery Requests
The lesson to take away from this is that the best way to get through the discovery process and keep costs down is to fully comply, as soon as possible. Otherwise, you will be faced with litigation regarding obtaining the remaining documents and it will also delay finalizing your case.
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