SHOW ME THE MONEY! SHOW ME THE MONEY!

I have talked about my situation where I ended up with a bunch of lawyers, all of whom despite excellent qualifications turned out to be mighty stupid.  My first stupid alert came with the second attorney who looked at the papers I brought her six months after I filed for divorce and kept on saying, but what about "discovery"? 

Yes, ladies, discovery!  Discovery is the process whereby all of the marital assets are laid on the table so that the parties (i.e. you and your ex) know exactly what there is that you need to divide in your financial agreement which is presented to the judge at the time of dissolution (when your marriage is dissolved).  The big excitment that gets generated around the issue of discovery occurs when one or the other party tries to hide those marital assets and avoid sharing--not a nice thing to do in the divorce sandbox. 

The way to make sure that all the marital assets are out in the open and that there is no hiding is to file a motion called "Motion For Mandatory Disclosure and Production" really early in the divorce.  This document gives the other party 30 days within which to produce the most essential financial documents necessary to determine the total value of your marital assets.  Usually this document has attached to it Schedule A which is a list of what financial documents the other side has to produce.  What is on this list is determined by Practice Book 2011, Section 25-32.  The full contents of this section is as follows:

Sec. 25-32. Mandatory Disclosure and Production(a) Unless otherwise ordered by the judicial authority for good cause shown, upon request by a party involved in an action for dissolution of marriage or civil union, legal separation, annulment or support, or a postjudgment motion for
modification of alimony or support, opposing parties shall exchange the following documents within thirty days of such request:
(1) all federal and state income tax returns filed within the last three years, including personal
returns and returns filed on behalf of any partnershipor closely-held corporation of which a party
is a partner or shareholder;
(2) IRS forms W-2, 1099 and K-1 within the last three years including those for the past year if the
income tax returns for that year have not been prepared;
(3) copies of all pay stubs or other evidence of income for the current year and the last pay stub
from the past year;
(4) statements for all accounts maintained with any financial institution, including banks, brokers
and financial managers, for the past 24 months;
(5) the most recent statement showing any interest in any Keogh, IRA, profit sharing plan,
deferred compensation plan, pension plan, or retirement account;
(6) the most recent statement regarding any insurance on the life of any party;
(7) a summary furnished by the employer of the party’s medical insurance policy, coverage, cost
of coverage, spousal benefits, and COBRA costs following dissolution;
(8) any written appraisal concerning any asset owned by either party.
(b) Such duty to disclose shall continue during the pendency of the action should a party appear.
Copyrighted by the Secretary of the State of the State of Connecticut
This section shall not preclude discovery underany other provisions of these rules.
(P.B. 1998.) (Amended June 29, 1998, to take effect Jan.
1, 1999; amended June 26, 2006, to take effect Jan. 1, 2007.)

There are some important things to note about this list, one of which is section 8 (b) the ongoing duty to disclose.  At any time during the divorce process that the other side stumbles across a document which would complete the requirements in section 25-32 there is an ongoing duty right up to the day of dissolution to disclose that document.  So if your ex provides discovery based upon 25-32 and it is incomplete for some reason, his duty to obtain and submit the documentation to you remains in place right up to the point where you sign your financial agreement and get divorced.  So if it turns out that for any reason the other side was withholding an important document, you have solid grounds to go after your ex for contempt and/or reopen the case. 

Another point to take note of is that discovery in financial accounts goes back a full three years, which is pretty thorough, so make sure that your attorney puts that three years stretch in his Schedule A.  Don't let him give the other side a break and reduce the time frame to one year on a voluntary basis because you have a right to more. 

And remember, a significant number of abusers make plans to divorce you and cheat you many years before they actually file for divorce, so if you think you need to go back further than three years, then go ahead and ask for it.  The other side can object, but 1) they may not object, and 2) if you have reasonable grounds to be concerned, you do have a shot at getting further discovery if you ask a judge. 

Also, keep in mind that when you are asking for statements from bank accounts, that means the full and complete statements, not ones that are missing page 2 or page 4 and those pages happen to have the crucial evidence you are looking for.  Insist on getting everything you have a right to and that includes complete documents.  Check the page numbering to be sure something isn't missing. 

Remember tax returns without the backup documentation are fairly meaningless, so make sure you get the W-2s, the 1099s, and the k-1s as well as the evidence of expenses listed in Schedule C and Schedule E.  Otherwise, the other side can and will (do not be naive) invent stuff. 

Time is of the essence here.  The more delay there is in this process, the more opportunities for your ex to evade and avoid disclosure.  The court supports the delays and aids and abets men in avoiding accountability by continually delaying court dates and extending the divorce process to over a year, sometimes up to two years or more after the initial filing. 

Most Vital:  While discovery is taking place, each time you receive a packet of material in response to discovery requests, itemize what you have received and acknowledge them in a letter to the other side, then include a statement indicating what still remains to be provided.  If the opposing side includes a statement of compliance which has been filed in court, review that statement of compliance for accuracy and if there are any inaccuracies, respond with a motion to court indicating where there are problems.  Never, ever, miss the opportunity to do that because if you don't, they will say, "We gave you a copy of the May 20-- statement (see here our statement of compliance which you did not object to or question!) and now we can't find another one and it will take two months to get a replacement and the trial is tomorrow so too bad for you.  You do not want to be in that situation.  Trust me. 

If you end up having to use force to get the other side to provide financial information always use a subpoena and never use authorizations.  Authorizations are permissions signed by your ex allowing you access to his accounts.  Most financial institutions view authorizations with suspicion and will not comply with them fully. 

Keep in mind that if you find any funny business, hidden assets, a fraudulent financial affidavit, anything, you have four months after the date of dissolution to reopen your case legitimately.  After that, it isn't impossible, but it is much much harder to do.

And finally, If you follow through on these procedures, you will be able to negotiate a fair and equitable financial agreement and put your divorce behind you.  There is nothing worse than finding out six months after dissolution that your ex hid $100,000 from you or something like that. And keep in mind, once your divorce in over, you no longer have a right to any discovery, so get it while you can!

Where I see the situation go wrong in high conflict divorces, it is where litigants and/or their attorneys are careless about the process of discovery which I have described here.  Usually when I talk to people like that I say something like, what about Schedule A, and they have no idea what it is.  Do not be stupid.  Ask about schedule A.  It is here in this blog.  It is in the Practice Book forever, and if you overlook it or miss it, shame on you.