Sometimes, even the most ethical New York divorce lawyer is confronted with a case, the circumstances of which are such that there is no good option for the client, except to litigate.
This occurs when the other spouse is lying, unwilling to disclose their assets or income, and/or is guilty of domestic violence of serious abuse. Mediation or a collaborative divorce are generally not viable options under such circumstances.
The “discovery process” can be challenging in a litigated divorce.
What is discovery? Discovery in a New York litigated divorce is basically a pre-trial process in which each party’s counsel, in compliance with Article 31 of the CPLR (New York State’s procedural rules of law in civil cases), can obtain financial documents from the other party using discovery mechanisms (provided by law) such as interrogatories, requests for production of documents, requests for admissions and also depositions. Many times, though, this exchange of information or production of documents by the parties is either insufficient and/or incomplete and it becomes necessary for the lawyers to serve subpoenas in order to get the records and documents.
The Power of the Subpoena
Subpoenas are among the most effective discovery tools available to New York divorce lawyers to obtain records related to a spouse’s income, employment, businesses of any kind, credit cards, retirement plans, and tax related documents from individuals or entities that are not parties in the divorce proceedings. These third parties, when served with a subpoena, are required to comply with it and, with the help of their subpoena compliance units, must provide the requested documents and information.
This type of subpoena is called “Subpoena Duces Tecum,” which, in Latin, means “documents you shall bring with you.”
Subpoenas also empower divorce lawyers to examine a party or a non-party under oath asking questions related to financial matters; because the answers to such questions are made under oath, they are subject to the penalty of perjury if false testimony is given knowingly.
When the discovery process is concluded and each attorney is satisfied with the document production, then trial can begin with a clearer picture of how much each party owns, makes or has earned. Sometimes parties can be owners of property, such as real estate and other businesses, and the judge can appoint an impartial appraiser or evaluator to estimate the value of such property.
The Discovery Process can be Expensive
Although discovery can be beneficial in revealing the truth, it has its disadvantages when it comes to time and money. Many institutions, banks and financial entities charge a fee for the production of records, so parties have to pay such fees, in addition to the oftentimes very substantial fees for their attorney’s time, and it may take to up six months for the financial discovery to come to an end.
A collaborative divorce or mediation process relies on the honesty and transparency of both parties, especially when it comes to financial disclosure. When parties disclose their W-2s and/or income tax records and exchange copies of their Statements of Net Worth, lawyers can avoid litigation, and the parties can save thousands of dollars while reaching an equitable out of court settlement.
If divorcing spouses consider how expensive, nerve-wracking and time-consuming litigation is, that might motivate them to be more willing to choose collaborative or mediation, and be honest and open when it comes to financial disclosure. Unfortunately, that is not always the case.
©Arnold D. Cribari 2019
