By: Shari Lee Genser, Esq.
Discovery is an important aspect of all litigation. It is the process whereby the parties to a case demand and exchange information regarding the contested issues. In divorce matters, discovery provides the opportunity for a spouse to review the other spouse’s financial records, such as bank and brokerage account statements, credit card statements, and retirement account statements. In cases where the parties have maintained separate finances throughout the marriage, or where one party has maintained primary control over the finances of the marriage, the discovery process levels the playing field by equalizing the information that each party has access to in regards to the financial issues. Similarly, in custody cases, discovery provides the opportunity for a parent to propound written interrogatories as to the other parent’s position regarding the appropriate post-separation custody and parenting time plan, and related co-parenting issues. Also, for highly contentious custody disputes, the discovery process may involve the retention or either joint or separate experts, who will interview the parties and their children and opine as to what custody and parenting time arrangements will serve the best interests of the children.
In New Jersey, we have various forms of pre-trial discovery. The most commonly used discovery vehicles in family law matters are as follows:
- Parties may serve requests for the production of documents, commonly referred to as a Notice to Produce.
- Parties may serve demands for certified responses to written questions, commonly referred to as Interrogatories.
- Parties may issue a demand for the other party’s, or a third party’s, appearance for live pre-trial testimony under oath, commonly referred to as a Deposition.
Simultaneous to the exchange of paper discovery and the taking of depositions, the parties may retain various experts to opine on the contested issues. The most commonly used experts in family law matters are as follows:
- Parties may retain a forensic psychologist to opine as to what custody and parenting time arrangements will serve the best interests of the children.
- Parties may retain a forensic accountant to opine as to the cash flow and/or value of a party’s business interests, or to perform a marital lifestyle analysis.
- Parties may retain a real estate or personal property appraiser to opine as to the value of real or personal property.
- Parties may retain an employability expert to opine as to a party’s ability to earn income outside of the home.
Discovery is intended to bring all parties onto a level playing field of information as to the contested issues in a case. While it is costly and time consuming, the discovery process is intended to facilitate settlement and, as needed, prepare the case for trial.
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