Understanding Discovery in Divorce Cases

Many members of the public are familiar with a part of family law called “Discovery.” These are rights to obtain information and records from the opposing party, which may be used as evidence in hearings and trials. These rights were solidified over a period of many years during the 19th and 20th centuries and were codified in the Federal Rules of Discovery, which were largely based on the Discovery Act of 1964. This Act has been amended many times since then and can be found in California Code of Civil Procedure (“CCP”) §§2016.010–2036.050.

While this may sound like a rather dry topic, Discovery is the chief means by which spouses, especially those who have not been privy to the significant details of financial assets and transactions during the course of their marriage, can attempt to discover the complete financial and factual picture before or during divorce litigation.

Why Discovery Matters in Divorce and Family Law

Perhaps the most critical juncture of Discovery occurs prior to either party filing a Petition for Dissolution of Marriage. It is wise for a potential divorcé(ée) to start planning the process for obtaining the necessary family financial records weeks or even months before the commencement of litigation.

As any experienced family law attorney will assure you, it is far easier and less expensive to get hold of bank, investment, and retirement account statements, tax returns, and property ownership papers before hostilities develop, even in situations that appear “amicable,” than afterward.

Discovery is not just paperwork. It is the foundation of transparency in divorce, custody, spousal support, and property division. Without it, one spouse may be at a significant disadvantage.

Methods of Discovery in California Family Law

Your rights of Discovery take the form of several investigative procedures available in all marital dissolution cases. The procedures include:

1. Obtaining Testimony and Records of Non-Parties (CCP §§2020.010–2020.510)
2. Taking Depositions of the Parties (CCP §§2025.010–2025.620)
3. Written Interrogatories to the Parties (CCP §2030.010–2030.410)
4. Inspection and Copying of Documents, and Personal and Real Property (CCP §§2031.010–2031.510)
5. Physical and Mental Examination of Parties (CCP §2032.010–2032.650)
6. Requests for Admissions by Parties (CCP §§2033.010–2033.740)
7. Exchange of Expert Witness Information (CCP §§2034.010–2034.730)

These are the most frequently used and useful methods of investigation and securing trial evidence. However, other procedures are available for special situations not covered above.

Additional Tool: Vocational Evaluations

Another litigation tool, although not part of classical discovery, is the Vocational Evaluation. This is used in connection with disputes over spousal support and assists the court in determining the ability of the spouse seeking support to obtain gainful employment, thus reducing or limiting the need for long-term payments. (Family Code §4331).

Practical Application of Discovery Tools

Deposition Subpoenas

Deposition subpoenas command production at your attorney’s office of physical evidence held by third parties, such as banks, employers, or doctors. They may also be used to obtain necessary testimony from witnesses or individuals with evidentiary knowledge but who are not parties to the case. Subpoenas must be drafted with clarity and specificity to avoid objections or delays.

Depositions of the Parties

Depositions often follow the first set of Interrogatories and Demands for Production. They are effective for:

• Understanding what facts the other spouse knows
• Evaluating witness credibility
• Exposing inconsistent or false claims

Depositions are conducted under oath, recorded by a court reporter, and can last several hours. The testimony can be used at trial to impeach a witness or clarify facts. If a party resists cooperation, a motion to compel can be filed to force compliance.

Interrogatories

Interrogatories are written factual questions asked of the other spouse. They do not need to be strictly limited to direct relevance. There are two main types:

• Form Interrogatories, which are pre-approved and commonly used in family law.
• Special Interrogatories, which must be drafted individually and are limited in number (generally 35 without agreement or court permission).

As the trial approaches, contention interrogatories require the opposing party to clearly state their positions and identify supporting evidence. If responses are incomplete or evasive, sanctions may be imposed after a motion to compel.

Demands for Production of Documents

These demands allow access to financial records, property titles, or inspection of real estate, vehicles, or valuable assets. Photographs and electronic records are also included. Non-compliance can result in monetary penalties, orders compelling production, or exclusion of evidence. Courts may also award attorney’s fees to the party forced to bring a motion.

Physical or Mental Examinations

Frequently used in custody cases or when a spouse’s health affects their ability to parent or work. A licensed professional conducts the exam, and their written report is submitted to the court. Disputes often arise regarding scope, privacy rights, and the use of trial results. Courts strike a balance between the need for evidence and the personal dignity and medical confidentiality of individuals.

Requests for Admissions (RFA)

RFAs are often served close to trial to pin down a spouse’s position and prevent shifting stories. A failure to respond within 30 days generally results in the automatic admission of the requested facts. This makes them a powerful tool for narrowing issues for trial and avoiding unnecessary disputes. Improper denials may result in sanctions.

Exchange of Expert Witness Information

Experts play a pivotal role in high-asset divorces, medical disputes, and custody evaluations. In California, expert information must be exchanged within specific statutory deadlines, usually 50 days before trial or 20 days after a demand is served. Failure to disclose experts on time may prevent them from testifying at trial.

Strategic Timing and Cost Considerations

Though it may not be apparent from merely reviewing the Discovery options, these processes often require significant attorney preparation. This is why obtaining records and information before filing for divorce saves time, legal fees, and stress.

There are also deadlines to be aware of:

• Discovery responses are typically due 30 days after service.
• The discovery period typically closes 30 days prior to the trial.
• Courts expect parties to meet and confer before filing motions related to discovery disputes.

Strategically, the earlier the discovery is planned, the stronger your position becomes in settlement negotiations and trial preparation.

Common Challenges and Conditional Scenarios

Refusal to Participate in Discovery

If a spouse refuses to respond or provides incomplete responses, courts may:

• Order compliance through a motion to compel.
• Impose monetary sanctions for attorney’s fees.
• Exclude evidence at trial.

Protective Orders

When discovery requests are abusive, irrelevant, or overly burdensome, courts may issue protective orders to limit or prevent the disclosure of information. This balances fairness with privacy rights.

Discovery Abuse

Tactics such as delaying responses, hiding documents, or overwhelming the other side with excessive requests are considered abuse. Courts strongly disfavor such behavior and may impose penalties.

Electronic Discovery (E-Discovery)

Modern divorces often involve electronic evidence, including emails, text messages, social media activity, and cloud-stored financial records. These digital assets are subject to discovery, but they also raise additional concerns regarding privacy and authentication. Skilled legal guidance is essential in handling them.

Role-Specific Discovery Applications

• Parents in Custody Disputes: Discovery often includes psychological evaluations, school records, and testimony from child specialists.
• High-Net-Worth Spouses: Forensic accountants, business valuations, and complex asset tracing are central.
• Stay-at-Home Parents: Vocational evaluations assess earning potential in spousal support disputes.
• Business Owners: Discovery may involve detailed analysis of business income, tax returns, and shareholder records.

FAQs on Discovery in California Divorce

What is the purpose of discovery in a divorce case?

Discovery ensures both parties exchange necessary information to make fair decisions about property, custody, and support.

Can I start discovery before filing for divorce?

You cannot formally use discovery procedures until a case is filed, but gathering records informally in advance is highly recommended.

What happens if my spouse hides assets during discovery?

Courts can impose financial sanctions, modify property division, or reopen settlements if intentional concealment is discovered.

Do I need an attorney to handle the discovery process?

Yes. While some spouses attempt discovery on their own, the legal procedures are technical, and mistakes can harm your case. An attorney ensures compliance and strategy.

Are there limits to what can be discovered?

Yes. Courts balance privacy rights with the need for disclosure. Requests must be proportional, relevant, and not overly burdensome.

How long does discovery take in a divorce?

The process may last several months, depending on case complexity. Discovery typically closes 30 days before trial.

What are sanctions for discovery violations?

Sanctions can include monetary penalties, attorney’s fees, exclusion of evidence, or even rulings against the offending party.

Get Legal Help with Discovery in Divorce

Discovery is one of the most important and often most complex stages of family law litigation. While it provides tools to uncover hidden assets, evaluate claims, and prepare for trial, it can also be time-consuming, costly, and stressful if handled without guidance.

At Reape Rickett, our experienced family law attorneys have decades of experience navigating California’s discovery rules. We know how to protect your rights, ensure compliance, and position your case for the best possible outcome.

Contact Reape Rickett today to schedule a consultation and secure skilled guidance through every stage of your divorce or family law matter.