Discovery is a term that describes broadly the exchange of documents necessary for the parties in a case to be fully informed as to all the relevant facts in the case.
In a Florida divorce, the exchange of documents is fairly predictable. There are a few documents related to children like their report cards and their health charts. There are a lot of standard financial documents like tax returns, credit card statements, mortgage and account balances. For folks who own businesses or have creative finances, it can get a little hairy. But for two people who both are issued W-2s, divorce discovery is very standard.
Most states have a byzantine system for handling discovery called “The Rules of Civil Procedure.” Florida, in its wisdom, has created a separate set of Florida Family Law Rules Of Civil Procedure that are specifically for use in the domestic relations courts. These rules may be 174 pages long but they are a breath of fresh air for any lawyer who has struggled to litigate a divorce under the same rules as a product liability case.
Mandatory Discovery – Financial Affidavit
All divorce cases in Florida require the following to be exchanged:There are two types of financial affidavits. One financial affidavit is for a party to a divorce that makes less than $ 50,000. The other financial affidavit is for a party to a divorce that makes more than $ 50,000.
Fill the financial affidavits out with great care. This is the one discovery document that gets filed with the court. Furthermore, you will attest under oath that the contents for the affidavit are true.
You can fill the financial affidavit out with your lawyer but it’s highly advisable that you fill the financial affidavit out by yourself as it is extremely time consuming. You should give your financial affidavit to your attorney with the supporting documents to double check.
The financial affidavit is the one thing in discovery that you cannot waive by agreement of the parties. You must fill the affidavit out and file the affidavit with the courts.
Other Documents Required In Mandatory Disclosure
Everything else that you must exchange is really optional so long as the two parties agree that the items are irrelevant or overly cumbersome. Note: I have truncated many of these rules to ease readability.
- “All federal and state income tax returns, gift tax returns, and intangible personal property tax returns filed by the party or on the party’s behalf for the past 3 years.
- IRS forms W-2, 1099, and K-1 for the past year, if the income tax return for that year has not been prepared.
- Pay stubs or other evidence of earned income for the 3 months before service of the financial affidavit.
- A statement by the producing party identifying the amount and source of all income received from any source during the 3 months preceding the service of the financial affidavit required by this rule if not reflected on the pay stubs produced.
- All loan applications and financial statements prepared or used within the 12 months preceding service of that party’s financial affidavit required by this rule, whether for the purpose of obtaining or attempting to obtain credit or for any other purpose.
- All deeds within the last 3 years, all promissory notes within the last 12 months, and all present leases…
- All periodic statements from the last 3 months for all checking accounts, and from the last 12 months for all other accounts…
- All brokerage account statements in which either party to this action held within the last 12 months…
- The most recent statement for any profit sharing, retirement, deferred compensation, or pension plan (for example, IRA, 401(k), 403(b), SEP, KEOGH, or other similar account) in which the party is a participant or alternate payee…
- The declarations page, the last periodic statement, and the certificate for all life insurance policies insuring the party’s life or the life of the party’s spouse…
- Corporate, partnership, and trust tax returns for the last 3 tax years if the party has an ownership or interest in a corporation, partnership, or trust greater than or equal to 30%.
- All promissory notes for the last 12 months, all credit card and charge account statements and other records showing the party’s indebtedness as of the date of the filing of this action and for the last 3 months, and all present lease agreements, whether owed in the party’s name individually, in the party’s name jointly with any other person or entity, in the party’s name as trustee or guardian for any other person, or in someone else’s name on the party’s behalf.
- All written premarital or marital agreements…
- All documents and tangible evidence supporting the producing party’s claim that an asset or liability is nonmarital, for enhancement or appreciation of nonmarital property, or for an unequal distribution of marital property…”
- Any court orders directing a party to pay or receive spousal or child support.” Fla. Fam. L. R. P. 12.285(e)
At the end of all of this the party must file a Certificate of Compliance attesting that they produced everything that they had under their possession or control.
“All parties subject to automatic mandatory disclosure must file with the court a certificate of compliance, Florida Family Law Rules of Procedure Form 12.932” Fla. Fam. L. R. P. 12.285(j)
Time Frame For Discovery
The initial discovery must be tendered within 45 days of service to the respondent. Fla. Fam. L. R. P. 12.285(b)(2).
45 days is not a lot of time to turn over a lifetime’s worth of documents. Especially if you’re the respondent and haven’t been preparing for divorce. Thankfully, there is a rule for time extensions:
“By agreement of the parties, the time for complying with mandatory disclosure may be extended. Either party may also file, at least 5 days before the due date, a motion to enlarge the time for complying with mandatory disclosure. The court must grant the request for good cause shown.” Fla. Fam. L. R. P. 12.285(h)
This means that if you say, “I can’t get those documents because they’re in the attic and it needs to be cleaned out first” the court has to give you extra time if it finds that “good cause” was shown. More frequently, attorneys will just agree to more time (I always do).
The list of items that the Florida Family Law Rules Of Procedure outline is by no means exhaustive. If your spouse has a business or a curious yet valuable collection, you’ll need to be asking for a lot more information specific to those items.
There are many ways you can ask for information regarding non-typical assets.
Production of documents from the other party.
You can request specific documents from your spouse. You can even request that you be allowed to enter their house, business or land for inspection to find additional documents. Fla. Fam. L. R. P. 12.350
While this may seem extreme to demand entry onto someone’s property for inspection, you do not need the court’s permission. You merely need to issue a notice of production and it is incumbent on the other party to object.
Production of documents from a third party.
You can request documents relating to your divorce from a third party (for example: your spouse’s employer). This is done by subpoena.
A subpoena is a document that requires someone to come to court or (more typically) to turn documents over. A subpoena has the force of law unless objected to timely. For this reason, a subpoena must be tendered to the other side as well as the third party to give the opposing party opportunity to object.
Interrogatories are standard questions that a party can issue to the other party to get more information. In Florida, these questions are all standard and issued by the Florida courts. There is one set of interrogatories for parties who are not yet divorced and one set of interrogatories for parties who are already divorced and seeking modification.
It’s debatable how useful these are because it’s very easy to answer these questions while being very vague. That being said, there is no harm in issuing interrogatories to the opposing party.
A deposition is the act of giving sworn evidence. It largely resembles an interview where the opposing counsel asks the deponent (person getting deposed) a series of questions.
Depositions are incredibly open-ended and often are a “fact finding mission” to learn more about where to request other documents. So, literally, any question could be asked of the deponent.
A deposition is not a trial, however. The deponent’s attorney can be present and object to the questions. The attorney “may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under subdivision…Otherwise, evidence objected to must be taken subject to the objections.” Fla. Fam. L. R. P. 12.310(a)
So, the deponent has to answer virtually all the questions whether they would be admissible in court or not.
There are two kinds of depositions: 1) deposition by written questions and 2) oral depositions.
A deposition by written questions is merely a series of written questions that the deponent must answer. This is usually appropriate where the deponent is a non-biased third party (like asking a bank teller how many times a husband checked a safe deposit box).
An oral deposition is an in-person deposition with a court reporter where follow up questions will be necessary. Oral depositions are typically necessary if the deponent is the opposing party or some perceivably biased person (example: the opposing party’s mother).
Examination of Persons
An examination of persons requires a party or third party to come under the examination of an expert. This is like a deposition except the expert is asking the questions not the attorney.
“Examinations may include, but are not limited to, examinations involving physical or mental condition, employability or vocational testing, genetic testing, or any other type of examination related to a matter in controversy.” Fla. Fam. L. R. P. 12.360(a)
So, an examination can go even beyond the scope of a deposition. An examination can be a physical from a doctor, for example.
The examiner then issues a report to the parties and the court of the findings of the examination.
In trial or hearing, the examiner may be called as a witness in regards to those findings.
Requests For Admissions.
A party can serve another party with a request for admissions that asks that the other party certify that all of their documents are legitimate and truthful. Fla. Fam. L. R. P. 12.370.
This eliminates any possibility of a party later contesting discovery (“that’s not my paycheck”).
Updating Financial Disclosure
If any document was tendered to the other side during discovery and the contents of that document changes in some material way (for example the balance of a 401k), the party is obligated to tender an updated version of that document to the other side. Fla. Fam. L. R. P. 12.285(f)(1).
This duty to update includes, in particular, the financial affidavit and the financial affidavit’s supporting documents. Fla. Fam. L. R. P. 12.285(f)(1).
In practical terms, if you have a hearing, trial, or final prove up scheduled in your divorce case, you should update your financial affidavit and review your previously tendered documents for possible changes.
Temporary Financial Relief Hearings
You are not required to engage in complete discovery if you are at the beginning of your case and you are on the first step: seeking temporary financial relief (alimony or child support) to simply support yourself and your children while you gear up for all the details of the divorce such as parenting time and division of assets.
A temporary financial relief hearing requires the exchange of the following documents.
“(1) A financial affidavit in substantial conformity with Florida Family Law Rules of Procedure Form 12.902(b) if the party’s gross annual income is less than $50,000, or Florida Family Law Rules of Procedure Form 12.902(c) if the party’s gross annual income is equal to or more than $50,000. This requirement cannot be waived by the parties. The affidavit must also be filed with the court.
(2) All federal and state income tax returns, gift tax returns, and intangible personal property tax returns filed by the party or on the party’s behalf for the past year. A party may file a transcript of the tax return as provided by Internal Revenue Service Form 4506 T in lieu of his or her individual federal income tax return for purposes of a temporary hearing.
(3) IRS forms W-2, 1099, and K-1 for the past year, if the income tax return for that year has not been prepared.
(4) Pay stubs or other evidence of earned income for the 3 months before service of the financial affidavit.” Fla. Fam. L. R. P. 12.285(d)
So, for just a temporary financial relief hearing you need to fill out a financial affidavit and have last year’s tax returns, W-2s, 1099s, K-1s and 3 months of paystubs.
You are required to tender these documents at least 7 days before the hearing for temporary support.
Your spouse will have to provide the same before the hearing date within 12 days. If your spouse does not provide these documents, the court can use your testimony to assess his or her income.
If you testify, “I knew he used to make $ 100,000 a year,” and then your spouse testifies “I only make $ 50,000 a year,” the judge is likely to say, “If you only make $50,000 a year you should have brought some kind of document saying that. Until then, I have no reason to disbelieve your wife.”
Notes About Florida Family Law Discovery
You do not need original copies of almost anything. A copy is usually sufficient.
“Unless otherwise agreed by the parties or ordered by the court, copies of documents required under this rule may be produced in lieu of originals. Originals, when available, must be produced for inspection upon request.” Fla. Fam. L. R. P. 12.285(a)(2)
While everything else in your divorce case will be filed with the courts, discovery is not filed.
“Except for the financial affidavit and child support guidelines worksheet, no documents produced under this rule shall be filed in the court file without first obtaining a court order.” Fla. Fam. L. R. P. 12.285(a)(3)(a)
In fact, if you file anything with a social security number or personal information, you could be subject to sanctions by the court.
There are a bevy of rules to follow when filing: 1) You can only refer to minor children by their initials; 2) You can only state a person’s birth year not their birthday; 3) Any account number must only include the last four digits, and 4) even emails must be truncated. Fla. R. Jud. Admin 2.425.
When in doubt, don’t file anything in a Florida court with any kind of specificity.
What Happens If You Do Not Exchange Discovery?
If you don’t comply with discovery you will be defaulted which means that the other party can divorce you and ask for anything that they want within reason and the court will give it to them without your objection.
The rule even promises to do so:
“Nothing in this rule shall be deemed to preclude the entry of a final judgment when a party in default has failed to comply with this rule.” Fla. Fam. L. R. P. 12.285(m)
The court may take further action if discovery is not complied with including sanctions and/or striking specific pleadings by the non-complying party. Fla. Fam. L. R. P. 12.380(b).
For example, if a party requests support but does not comply with discovery, the court may simply strike their petition for support as a punishment/solution.