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Divorce and Discovery (Part 1)

In any Denver area divorce or custody case, each side is going to be required to complete and exchange regular financial disclosures pursuant to the Colorado Rules of Civil Procedure, Rule 16.2. Normal financial disclosures will include drafting what is called a “Sworn Financial Statement,” which is a document essentially setting forth a party’s income, assets, debts, and expenses. In addition to the Sworn Financial Statement, parties will also be required to provide various other documents, such as the last 3 year’s tax returns, last 3 month’s pay stubs, and current bank, credit card, insurance, retirement, and various other financial statements. The purpose behind this exchange to make sure that each party has the financial information he or she needs to make assessements as to various financial issues, whether income related to child support or alimony or what property there is in a divorce case and how it will be divided.

The normal C.R.C.P. Rule 16.2 financial disclosures tell part of the picture, but sometimes don’t give enough information for people to make informed decisions or prepare adequately for a court hearing. As such, the Rules of Civil Procedure also authorize various other mechanisms for gathering information from the other party. Specifically, there are various rules which allow depositions, requests for admissions or inspection, interrogatories, and requests for production of documents. In general, this body of requests that can be made is called “discovery.” As Denver area divorce and family law attorneys we generally see the “discovery” issued, or received, in the form of the latter two: interrogatories and requests for production of documents. In theory, discovery should be issued in instances when the financial disclosures just don’t tell enough, or more information is sought, such as might relate to the children or job search efforts. Other instances in which our attorneys might issue discovery might be when the other party is self-employed or owns an interest in a business, or perhaps has been the one who primarily, or solely, dealt with the parties’ finances.

Discovery can be a useful tool in both a divorce or custody case. As a general rule of thumb, and keeping client funds and costs in mind, discovery should only be issued when needed. Issuing and responding to discovery bring certain additional costs and challenges. Sadly, there are attorneys out there who issue it “just because” or as a matter of course. In these instances, there is not much one can do, as each party has the right to request more information. Inevitably, when one party issues discovery, the other side will almost certainly return the favor. Though this might sound childish, the legal world can be very tit-for-tat.

For purposes of this article, I will focus on some of the basics of discovery for our readers to keep in mind:

1. Interrogatories, C.R.C.P. Rule 33, are written questions set forth to the other side, which they are required to answer within 35 days of issuance. There are both “pattern” and “non-pattern” interrogatories. The pattern ones consist of 13 basic questions set forth in statute relating to various financial issues, but for question #13, which deals with child-related matters should custody be an issue. In addition to pattern questions, a party can also issue the non-pattern interrogatories. In essence each side is allowed to ask a certain number of additional questions he or she believes are relevant to the case, in addition to the pattern ones.

2. Requests for Production of Documents, C.R.C.P. Rule 34, are written requests to the other side asking for various documents relevant to the case, and can include the issuance of information releases to be signed. As with Interrogatories, Requests for Production of Documents can be both pattern and non-pattern. As with Interrogatories, statute sets forth 9 basic pattern requests regarding financial information accrued during the course of the marriage or child’s life, such as bank statements, credit card statements, etc., which might be relevant in your Colorado custody or divorce case. As with Interrogatories, Requests for Production of Documents must be responded to within 35 days.

The initial “Part 1″ of this post includes basics and basic terminology. Part 2 will focus on specific in’s and out’s of discovery, limitations on discovery, rules for complying with a request, consequences for failure to comply with a request, and the timing for issuance of discovery. While divorce attorneys in Denver don’t generally issue discovery in every case, the issue arises enough to warrant further discussion and insight. Part 2 is soon forthcoming.

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Stephen Plog, co-founder of Plog & Stein, P.C. in 1999, is a dedicated family law attorney with almost two decades of expertise in Denver. Focused exclusively on family law since 2001, he excels in both intricate legal writing and courtroom litigation, having navigated cases in all Denver metropolitan area District Courts. Steve’s comprehensive background, including a Bachelor’s Degree in Psychology and a law degree from Quinnipiac University School of Law, underscores his commitment to providing insightful and personalized representation in family law matters.