Tuesday, July 7, 2009

To discover assets, just add a "y".

There are only three ways for a lawsuit to end. The parties can settle, a court can decide, or the parties can dismiss the case. A divorce is no different. Assuming that the parties cannot reconcile and dismiss their case (after all, it only takes one person to make a divorce). How do you prepare?

Prior to settlement or trial, the parties should be well aware of both the nature and extent of their estate and all issues concerning their children, if any. Preparation is key. It would be unconscionable to settle or try a divorce case, without some way of verifying the facts.

The process by which we discover the nature and extent of the parties' estate is called discovery. It is easy to remember, just add a "y" to discover.

Discovery is the method lawyers use to verify facts relevant to the rights and obligations of the parties. Discovery includes the right to question each other under oath at deposition, Interrogatories (written questions), Requests to Produce Documents, and Requests for Admissions and the like, that are used to discover, among other information, all assets and liabilities of each party.

Many lawyers waive discovery in an effort to cut costs. While a waiver of discovery may be applicable in some cases, caveat emptor (let the buyer beware). If you decide to waive discovery, at a minimum you should demand that an affidavit of assets and liabilities be exchanged. It is not uncommon for a party to hide assets or liabilities that could easily be discovered.

"Don't ask, don't tell" does not only appy to the military. A keen lawyer may advise his/her client not to tell unless asked. If you never ask, you may never receive and in many cases, you may not be able to ask again. Once a Judgment of Divorce is entered, in most cases, the Judgment can never be re-opened to divide undisclosed assets unless you previously asked about it!