What to expect during discovery in an INDIANA divorce

After hiring an attorney, your work will not be complete. While your attorney will certainly manage many aspects of the dissolution process on your behalf, the client’s “to do” list will not likely be a short one. Most important of those “to dos” will likely be the gathering and delivery of a great deal of documents and information.

While no two divorces are the same, generalities exist in terms of the documents and information likely to be exchanged. In short, you and your attorney must have an accurate and complete understanding of the financial state of your marriage when that marriage is to be dissolved and the property fairly divided. It is important to note that in Indiana, you and your spouse are considered to have “one pot” when it comes to financials. Regardless of how assets are named or titled, you and your spouse share everything by virtue of the fact that you are married.

Of course there are exceptions to this rule, particularly if parties have a premarital agreement, the marriage was very short, or if the vast majority of the assets were gifts or inheritance to only one spouse. Courts start with the belief that each and every asset and liability in one party’s name is automatically an asset or liability of the marriage. Therefore, part of the divorce process is working together with your attorney in order to gather not only your own personal financial information, but also those of your spouse, so that you are in a position to comprehensively distribute the assets and liabilities among both parties upon divorce.

Likely the first “financial task” your attorney will give you is to complete a Verified Financial Declaration (“VFD”) Form. In many counties in Indiana, every individual going through a divorce is required to complete a VFD and file the same with the court.  Many courts adopt local rules that require the declaration to be filed a certain number of days prior to preliminary or final hearings. The VFD asks you to provide information concerning all forms of income that you earn, as well as your expenses on a monthly basis. It will also overview any substantial assets that you own and liabilities that you owe. The VFD is required to be shared with your spouse and her attorney (if represented by counsel), and therefore will serve as a basis for the opposing party to begin assessing your financials.

In any litigation, the process called “discovery” is of paramount importance. It is the law’s way of entitling litigants to the right to access any and all information that they require in order to either settle their case, or adequately prepare for trial. The scope of discovery is incredibly broad, described as follows in Rule 26(B)(1) of the Indiana Rules of Trial Procedure:

In general. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject-matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

As one can gather from this description, nearly everything is fair game and therefore “discoverable” by litigants, and any person purporting to object or refuse to provide information may not be able to do so easily. In a dissolution, the most commonly requested pieces of financial information include the following: verification of a party’s income (pay stubs, W2s, K1s, and/or employment contracts); state and federal tax returns; documentation evidencing retirement and investment account values; documentation evidencing the value of any real estate as well as any existing mortgage debts on the same; bank account statements; credit card statements; and statements evidencing any additional liabilities, such as student loans, auto loans or promissory notes.

So how can all of this information be obtained? There are a variety of available discovery methods, including:

  1. Deposition;
  2. Written interrogatories;
  3. Production of documents, electronically stored information;
  4. Physical and mental examination; and
  5. Requests for admission.

The most commonly used methods of discovery in dissolutions are written interrogatories (questions) and requests for production of documents. These methods allow attorneys to clearly outline all of the information and documentation that they are requesting from the opposing party, and therefore are generally efficient and effective. When a party or attorney serves written discovery requests (interrogatories and/or requests for production of documents), the “answering party” will have thirty days to provide the requested information. Of course parties are able to compromise and work together in terms of accommodating any deadlines. However, the discovery process is regimented in order to always keep a matter moving forward and limit efforts to stall or delay.

In the event that a party refuses to cooperate with the discovery process or otherwise fails to provide sufficient responses, one may seek the assistance from the court.  The most common document filed regarding discovery is a “Motion to Compel.” Importantly, however, Rule 26(F) strictly requires litigants to make “reasonable efforts” toward resolving any discovery disputes in an informal manner before court intervention should be sought.  Our clients frequently request that we immediately file motions to compel, however, we must comply with the rules and attempt to resolve a discovery dispute before asking the court for help.

While the discovery process in dissolutions generally takes place between parties and their attorneys with minimal court involvement or oversight, there are various safeguards in place in order to ensure that information provided is honest and accurate. One such safeguard is the fact that upon responding to written discovery requests, the answering party is required to verify that the information contained in the responses is true and accurate. Generally, there will be a statement affirming the truth of the information provided and the answering party will have to sign her name to it, therefore subjecting herself to “the penalties for perjury” in the event that the information is untrue. Additionally, Rule 26(E) requires that answering parties “seasonably amend” their responses if and when new information is learned that would contradict the prior responses given.

The discovery process can be overwhelming and time-consuming. Any time that opposing parties are able to work reasonably together toward completing the process, a great deal of time, stress and expense will be saved by all.