1. Chapter 6:
Discovery and Financial
12
Statements
Family Law for the Paralegal
2nd Edition
Wilson
Class Name
Instructor Name
Date, Semester

2. LEARNING OBJECTIVES
After this lecture, you should be able to:
6.1 Describe discovery – its nature, purpose, and 12
scope in the domestic relations context.
List examples of informal discovery in family law
6.2 cases.
6.3 Identify the five formal discovery methods.
Class Name
Instructor Name
Date, Semester
Cont.

3. LEARNING OBJECTIVES
After this lecture, you should be able to:
6.4 Describe the strengths and weaknesses of the 12
various formal discovery methods.
Explain what e-discovery is and how the Internet
6.5 can serve as an information gathering tool.
Identify the kinds of objections that can be
6.6 made to discovery requests.
Class Name
Instructor Name
Date, Semester
Cont.

4. LEARNING OBJECTIVES
After this lecture, you should be able to:
6.7
Discuss the sanctions that can be imposed for
failing to comply with discovery requests, rules,
12
and orders.
Explain how to locate and complete financial
6.8 statements.
Identify ways of identifying and uncovering
6.9 hidden assets.
Class Name
Instructor Name
Date, Semester
Cont.

5. LEARNING OBJECTIVES
After this lecture, you should be able to:
6.10 Describe the roles of the client, the paralegal, 12
and the courts in the discovery process.
Class Name
Instructor Name
Date, Semester

6. Learning Objective
After this lecture, you should be able to:
Describe discovery – its nature,
6.1 purpose, and scope in the
domestic relations context.

7. What Is The Nature And Purpose
6.1 Of Discovery?
• Discovery is the process of gathering information
important to a matter at issue.
• It includes both formal and informal discovery and in
more recent years has come to include electronic
discovery.
• The purpose of discovery is to gather as much information
as possible about a case so that attorneys can make
appropriate recommendations and clients can make
informed decisions about their options.
• Because a failure to conduct discovery can have serious
consequences for the client and possibly result in a
malpractice action, the attorney should confirm in writing
if the client will not authorize discovery.
7

8. 6.1 What Is The Scope Of Discovery?
• In an uncontested case involving no children and
few assets, little or no discovery may be conducted
beyond the exchange of financial statements.
• In complex and hotly contested cases involving
many diverse assets, several children, and multiple
states, extensive and costly discovery may be
conducted.
• Information sought through discovery should not be
protected by privilege and should be designed to
lead to evidence that will be admissible at trial.
8

9. What Kinds Of Information Are
6.1 Sought In Family Law Cases?
• Early in a case, a discovery strategy will be proposed to
the client identifying the kinds of information needed, the
techniques to be used, the sequencing of efforts, the
assignment of tasks, and the projected cost.
• Information is commonly sought about the following:
– Financial assets and liabilities
– Current income and expenses
– Financial and nonfinancial contributions to the marriage
– Dissipation of marital assets
– Employment history
– Parenting history, skills and weaknesses of both parents
– Marital misconduct if fault grounds for divorce are claimed or
misconduct is considered in the context of spousal support and/or
property division decisions
9

10. Learning Objective
After this lecture, you should be able to:
List examples of informal
6.2 discovery in family law cases.

11. 6.2 What Is Informal Discovery?
• Informal discovery involves information gathering not
governed by specific procedural rules.
• Examples include:
– Searching public records
– Collecting bank account records and credit card statements
– Locating copies of income tax records
– Checking Blue Book values of vehicles, boats, etc.
– Checking stock values
– Using a private investigator
– Interviewing potential witnesses
– Gathering copies of deeds, titles, registrations
– Making copies of electronically stored documents, emails,
etc. if legally accessible
11

12. What Is Mandatory Self-
6.2 disclosure?
• Many states have mandatory self-disclosure rules requiring the
parties to automatically provide certain documents to each
other within a limited amount of time (usually 30-45 days) after
the complaint for divorce is served.
• Mandatory disclosure usually includes documents such as the
following:
– Federal and state tax returns for 3 years
– Bank statements for 3 years
– 4 most recent pay stubs
– Documentation of cost and nature of available health insurance
coverage
– Statements for investment, retirement and similar accounts for the past
3 years
– Copies of loan or mortgage applications for the past 3 years
– Copies of any financial statements prepared within the last three years
12

13. Learning Objective
After this lecture, you should be able to:
Identify the five formal discovery
6.3 methods.

14. 6.3 What Is Formal Discovery?
• Formal discovery is discovery that involves the use of
five discovery methods that are subject to
procedural and court rules.
• The five basic formal discovery methods are:
– Interrogatories
– Depositions
– Requests for admissions
– Requests for production of documents or things or for entry
upon land
– Requests for physical or mental examinations
14

15. Learning Objective
After this lecture, you should be able to:
Describe the strengths and
6.4 weaknesses of the various
formal discovery methods.

16. What Are Interrogatories And What Are Their
6.4 Primary Strengths And Weaknesses?
• Interrogatories: a method of discovery in which one party submits a
series of written questions to an opposing party to be responded to in
writing within a certain period of time under pain and penalty of perjury
• Strengths:
– Cost effective
– Generate further discovery requests
– Can identify potential witnesses, experts, physicians etc.
– Respondent has a duty to locate information necessary for response
and to supplement
• Weaknesses:
– Can only be used with parties
– Reviewed by respondent’s attorney so they reveal as little as possible
to the requesting party
– Responses are written so do not reveal respondent’s potential
weaknesses as a witness
16

17. What Are Depositions And What Are Their
6.4 Primary Strengths And Weaknesses?
• Deposition: a method of pretrial discovery in which one
party questions the other party or a third person under
oath; oral or written responses to questions are reduced
to writing for possible later use in a court proceeding
• Strengths:
– Can be used with parties and nonparty witnesses
– Necessary information can be obtained more quickly
– Performance of the deponent under oath can be assessed
– Follow-up and clarifying questions can be asked if answers are
incomplete, evasive, or open a new topic
• Weaknesses:
– Expensive
– May reveal the deposing party’s theory of the case
– May reveal the deposing party’s defenses
17

18. What Are Requests For Admission And What
6.4 Are Their Primary Strengths And
Weaknesses?
• Request for admission: a discovery method in which a
party makes written requests to an opposing party calling
for an admission or denial of specific facts at issue or
verification or denial of the genuineness of documents
relevant to the case
• Strengths:
– Cost-effective
– Narrow the issues to be addressed at trial
– Clarify disputed issues and confirm suspicions
– Reduce the facts (or validity of signatures or documents) needing
to be proved at trial
• Weaknesses:
– May reveal the requester’s theory of the case and defenses
18

19. What Are Requests For Production Of Documents Or
6.4 Things Or Entry Upon Land And What Are Their
Strengths And Weaknesses?
• Requests for production or entry upon land: a method of
pretrial discovery in which a party makes a written
request that the other party, or a third person, produce
specified documents or other tangible things for
inspection and/or copying
• Strengths:
– Can be used with both parties and nonparty witnesses
– Allow a party to obtain critical information from entities such as
employers and the IRS
– Yield information that leads to further productive discovery
• Weaknesses:
– Can be expensive depending on the nature and extent of the
production
19

20. What Are Requests For Physical Or Mental
6.4 Examination And What Are Their Strengths
And Weaknesses?
• Requests for physical or mental examination: a
method of discovery in which one party requests
that the court order the other party (or in limited
instances, a third party) to submit to a physical or
mental examination
• Strengths:
– May lead to discovery of otherwise privileged information
• Weaknesses:
– Can usually only be served on parties
– Highly intrusive and may exacerbate conflict
– Usually must be sought by motion and good cause must be
shown
20

21. Learning Objective
After this lecture, you should be able to:
Explain what e-discovery is and
6.5 how the Internet can serve as an
information gathering tool.

22. 6.5 What Is Electronic Discovery?
• Electronic discovery: discovery of documents in
electronic form; refers to any information created, stored
or utilized with computerized technology of any sort
• The focus of e-discovery is on finding information stored in
computers. The information can be sought from parties,
employers, investment firms, friends, relatives, and others.
• It may be used to discover business records, personal
records, cell phone records, etc.
• Rules governing electronic discovery are evolving at both
the federal and state levels and in some states e-
discovery is governed by existing civil rules.
22

23. How Does The Internet Serve As
6.5 An Information Gathering Tool?
• The Internet offers a rich variety of means to search
for information about people and their interests and
activities:
• Social networks like Facebook and Myspace
• Blogs and forums hosted by Google, Yahoo, and
websites of various support groups
• Registries, records and directories (some available
for free and some at nominal cost)
• Search engines such as Google, Yahoo, and Bing
• See Paralegal Application 6.10 on page 103 of the
text: The Internet as an Informal Discovery Tool.
23

24. Learning Objective
After this lecture, you should be able to:
Identify the kinds of objections
6.6 that can be made to discovery
requests.

25. What Kinds Of Objections Can Be
6.6 Made To Discovery Requests?
• Parties generally have a duty to respond to all
discovery requests for which there is no legally
accepted objection. Permissible objections are
usually governed by procedural rules and common
practice.
• The most common objections are:
– The request is unduly burdensome
– The request seeks information or material that is not relevant to
the issues in the case
– The document, item, or information sought is not in the party’s
possession or control
25

26. What kinds of objections can be made to
6.6 discovery requests? (cont.)
• The document, thing, or information requested is
protected by a privilege recognized in the
jurisdiction such as attorney work product, doctor-
patient, etc.
• The information being sought is cumulative
• The form of the question is improper
• The request is being made solely for the purpose of
harassment
• Compelling a response would violate the
respondent’s Fifth Amendment right against self-
incrimination
26

27. Learning Objective
After this lecture, you should be able to:
Discuss the sanctions that can
be imposed for failing to comply
6.7 with discovery requests, rules,
and orders.

28. What Kinds Of Actions Do Courts Take With
6.7 Respect To Discovery Requests?
• They may convene discovery conferences to resolve
disputes and order a discovery schedule
• They may issue protective orders when discovery is being
conducted in bad faith, is excessive, or seeks privileged
information
• In response to a motion, they may issue court orders
compelling compliance with discovery
• If a party fails to respond to an order to compel, a court
can hold him or her in contempt, award attorneys’ fees to
the other party, not permit the admission of certain
evidence at trial, or in the extreme, stay or dismiss the
case if the party in contempt is the moving party
28

29. Learning Objective
After this lecture, you should be able to:
Explain how to locate and
6.8 complete financial statements.

30. What Are Financial Statements And
6.8 Where Can They Be Found?
• A financial statement/affidavit is a party’s statement of his or
her assets and liabilities signed under pain and penalty of
perjury. In some states it must also be signed by the party’s
attorney.
• Financial statements are basically inventories of each party’s
assets and liabilities. They are designed to provide the parties
with the information they need to make informed decisions.
They also give the courts a frame of reference for making
decisions with respect to matters of support and property
division.
• Financial affidavits can now be located online in virtually all
states and are also available in family courts. In many states, a
financial statement is given to the defendant along with the
summons and complaint for divorce.
• See Exhibit 6.4 on pages 197 and 198 of the text for an example
of a financial affidavit (State of Connecticut).
30

31. How are financial statements
6.8 completed and by whom?
• Financial statements are very important documents and
must be completed carefully and accurately. Often
several successive versions may need to be prepared if
the case does not conclude quickly. Inconsistencies must
be able to be explained.
• Depending on the financial, organizational, literacy, and
record keeping skills of the client as well as the
complexity of the marital estate, the client may complete
the statement for review or may be assisted by members
of the family law team and sometimes also actuaries (to
value pensions), and accountants and experts to value
businesses and other such assets.
• See Paralegal Application 6.11 on page 199 of the text for
Pointers on Completion of Financial Affidavits.
31

32. Learning Objective
After this lecture, you should be able to:
Identify ways of identifying and
6.9 uncovering hidden assets.

33. 6.9 What are some of the ways in which parties “hide” or
use marital resources for their own advantage?
• They transfer assets to family, friends, or paramours
• They set up custodial accounts for their children
• They postpone receipt of bonuses and commissions etc. until after the
divorce
• They have a business and make payments to friends and relatives for work
that was not actually performed
• They keep cash, precious metals, and other valuables in safe deposit
boxes
• They make substantial and unexplained withdrawals from various
accounts for unknown or unexplained purposes
• They accumulate substantial vacation and sick time during the marriage
for which they will later be paid
• They make sham loans to family and friends
• They receive unacknowledged perks at work such as parking, travel,
food, and housing allowances
• They hold unregistered bonds or valuable unexercised stock options
33

34. What are some of the best resources
6.9 for detecting hidden assets?
• Some of the best resources for detecting hidden
assets are:
– Tax returns
– Bank statements
– Credit card statements
– Financial statements
– Public records
– Mortgage applications
• The family law team looks especially for
inconsistencies among the above and sometimes a
“forensic accountant” may be retained to analyze
and present evidence at hearings or trial.
34

35. Learning Objective
After this lecture, you should be able to:
Describe the roles of the client,
6.10 the paralegal, and the courts in
the discovery process.

36. What Are The Roles Of The Client And The
6.10 Family Law Team In The Discovery Process?
• The client and the family law team work together during the
discovery process with the paralegal’s and the client’s extent of
involvement depending largely on their skill levels. All of the
tasks the paralegal performs are completed under the
supervision of the attorney and both the client and the family
law team are constrained by law and rules of ethics.
• The major tasks performed by the paralegal include among
others:
– Drafting formal discovery requests
– Assisting the client and the attorney with drafting responses to
discovery requests
– Participating in informal discovery efforts to establish values of
selected assets
– Assisting the client in preparing financial statements
– Conducting Internet searches for information about both the client
and the opposing party
36

37. Chapter Summary
6.1 Describe discovery – its nature, purpose, and 12
scope in the domestic relations context.
List examples of informal discovery in family law
6.2 cases.
6.3 Identify the five formal discovery methods.
Class Name
Instructor Name
Date, Semester
Cont.

38. Chapter Summary
6.4 Describe the strengths and weaknesses of the 12
various formal discovery methods.
Explain what e-discovery is and how the Internet
6.5 can serve as an information gathering tool.
Identify the kinds of objections that can be
6.6 made to discovery requests.
Class Name
Instructor Name
Date, Semester
Cont.

39. Chapter Summary
6.7
Discuss the sanctions that can be imposed for
failing to comply with discovery requests, rules,
12
and orders.
Explain how to locate and complete financial
6.8 statements.
Identify ways of identifying and uncovering
6.9 hidden assets.
Class Name
Instructor Name
Date, Semester
Cont.

40. Chapter Summary
6.10 Describe the roles of the client, the paralegal, 12
and the courts in the discovery process.
Class Name
Instructor Name
Date, Semester