As previously indicated, under the Family Law Act, the court is required to divide community assets and community liabilities equally between the parties unless the parties have entered into an agreement which sets forth a different arrangement.
In view of the foregoing, one of the tasks for the attorney and client is to identify and place a value on all community assets and liabilities. If this information is not readily available, or for some reason the accuracy of the information is suspect, the law permits various procedures of investigation which are commonly called “discovery.”
Discovery may consist of informal investigation and verification of assets and liabilities. Discovery may also consist of depositions taken of the other party or of someone else who has important information or of interrogatories sent to the other party. Depositions basically are questions asked orally and answered under oath. Interrogatories generally follow the same approach except that the questions are asked in writing and the answers are made in writing and under oath. Further discovery often includes the hiring of appraisers to evaluate property, investigators to locate property, accountants to examine books and records (including such things as bank accounts, stock and business records) and other special consultants as the facts may require.
The reason for telling you all of this in this letter is to be sure that you understand that you have these rights of discovery. Obviously, discovery takes time and costs money. The degree to which discovery is necessary in any given case would depend in part on the complexity and size of the community property estate and, further, will depend on whether or not you have sufficient, accurate knowledge of the estate so that this knowledge may be relied on in the place of discovery. The time and expense of discovery are sometimes justified by the new information that is learned. In other cases, it may just confirm what is already known or believed.
In view of the foregoing, one of the important decisions that must be made by the client and the attorney in each dissolution case is that of the need for, and the extent of, discovery. Obviously, the safest practice in all cases would be to utilize maximum discovery. In a given case, however, the attorney and client may feel that the time and expense of discovery are not warranted.
The extent and description and value of each party’s separate property can also be important factors in determining a fair and equitable property settlement, spousal support, and child support. Discovery is available with respect to separate property assets as well as with respect to community property assets.
When you have finished reading this letter, we should discuss more fully the need and type of discovery that should be taking place in your particular case.