The Discovery Process in a Contested New York Divorce

In this article, you will learn about:

• How a skilled attorney can obtain vital information related to custody issues in downstate NY courts.
• The forms of discovery and disclosure common to New York divorce cases.
• What information you need to find the best case outcome for your NY divorce case.

When And How Does Discovery Begin In A Contested Divorce Case?

The best time for discovery to begin is right after a judicial intervention is filed. And certainly, the discovery process should start before attending the preliminary conference.

To do this, both parties can exchange and file a net worth statement with the court. (This can be found on the court’s website: https://www.nycourts.gov/LegacyPDFS/forms/matrimonial/Net%20Worth%20Statement%20Form%20(Gender%20Neutral)%20rev.%20June%202016%20Eff.%208.1.16.pdf). This statement will be a preliminary disclosure of income, expenses, assets, and debts.

During the preliminary conference, the court will order a mandatory disclosure. Mandatory disclosure includes three years of bank statements, tax returns, investment statements, retirement statements, and debt statements. If one has a life insurance policy with a cash surrender value, one should likewise produce the policy.

If mandatory disclosure has not already occurred, the court will typically allow 30 days for the exchange (though, there are some instances where this period is extended to 45 days). Again, it’s best to begin this process as soon as the preliminary conference orders come in. Starting early allows for you to have an “extra month” before the exchange takes place.

It’s important to know: there are other disclosure deadlines within the preliminary conference order. In most cases, there is a “discovery and inspection” demand. This is a request for documents in addition to the mandatory disclosure (set forth above).

Furthermore, the courts allow attorneys to exchange demands for interrogatories. This is a list of (generally up to) 25 questions (crafted by the attorneys) that the other party will answer and return. They are usually requests to clarify financial issues involved in child support, spousal maintenance, or the equitable distribution of assets – the answers of which may/may not be evident from the mere exchange of financial statements.

In should be noted that courts in upstate New York generally allow disclosure on custody and visitation issues. Meanwhile, downstate courts typically do not allow this type of disclosure – except by the court’s permission (and even then, it’s largely restricted).

The court will also set up a deposition deadline. In a deposition, both parties’ attorneys can ask questions of the divorcing couple. This is done in the presence of a court reporter in the attorney’s conference room.

A deposition helps to clarify gaps in information. Because this process can be time-consuming, it’s best to be thorough in your initial disclosures and answers to interrogatories. Comprehensive work before a deposition allows for a much more expedient process, as fewer concerns need to be addressed.

What Information And Evidence Is Available To Both Sides During The Discovery Period In A Contested Divorce?

It’s best to have as much information available to you and your attorney as possible. Because of court rules, it’s possible to get more information in some venues than in others.

Most downstate New York courts do not allow disclosure on the issues of child custody and visitation. Upstate courts, on the other hand, do permit these disclosures. Nevertheless, while downstate courts prohibit certain forms of disclosure — some other options remain available.

For example, one of the many factors on issues of asset distribution, child support, and spousal maintenance is one’s “health.” Therefore, if the other party has an issue with substance abuse or mental health, you may be able to argue for limited disclosures (the answers of which may then affect the custody issue). In the case that the other party objects to this, it’s possible to ask the Judge for permission on a statutory basis.

Alternatively, it may be possible to send out subpoenas for information. In this way, disclosure devices that are blocked due to custody and visitation issues may be made subverted. This is done by sending subpoenas to entities or people who may have information regarding these issues.

Consider the following situation: The other party has a substance abuse issue, and they are not willing to volunteer evidence of this fact. You send a subpoena to their current or former employers asking for information about their work history. That employer then describes how this person was let go for smoking marijuana while driving the company vehicle. You wouldn’t have been able to get this information from the other party directly. However, an alternative method gave you access to crucial evidence.

In other situations, discovery and inspection demands allow you to gain a wealth of information. This information is separate from what is traditionally shown in mandatory disclosure.

Again, mandatory disclosure includes 3 years’ of bank statements, tax returns, investment & retirement account statements, and statements of debt.

In a discovery and inspection demand, however, you can go beyond that. Some of the information that can be found through a discovery and inspection demand may include disclosures of :

• Copies of any financial statement that was filled out when applying for a line of credit;
• Wills and anything that went into them;
• Safe deposit boxes;
• Trusts;
• Business tax returns and business receipts; (These may be particularly helpful in proving a person’s true income — especially if they own their own business.)
• And more . . .

For more information on Discovery Process In A NY Contested Divorce, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (347) 797-1188 | (914) 362-3080 today.