Discovery in family law
If you need information from your spouse, domestic partner, or someone else, you can use a legal process (called discovery) to get this information. The person you need information or answers from is required to respond to your request.
You can keep using this process to get information until 30 days before your trial date (called the discovery cut-off date).
Get the information you need to make your case
Discovery is a way to get the information you need to support your case in court or make informed decisions before you reach an agreement.
You use discovery to find out:
- What your spouse plans to say about an issue
- What facts or witnesses support their side
- What facts or witnesses support your side
- Any information or documents that are only available to your spouse that show assets you own and debts you owe
You use the information you get to help you reach an agreement (negotiate). If you don’t agree, you use the information you gather as evidence in a hearing or trial.
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Example: Community or separate property?
You and your spouse disagree whether something is community or separate property. You ask your spouse for:
- Receipts from payments
- Records from the purchase
With that information, you may find out that money made during your marriage was used to pay for property. It is part community property. Since you both have the same information, you and your spouse may be able to agree or decide you need a judge to decide and go to trial.
To prepare for trial, you’ll do formal discovery
Discovery can be informal or formal. Informal discovery means sharing information voluntarily. This saves time and money. But, to prepare for trial, you will use the formal discovery process.
The other person must respond to your request and swear how they responded is true
In a formal discovery, you formally ask for information and documents.
- You write a formal request for information
- A server mails the request to your spouse
- Your spouse has 30 days (35 days if served by mail inside California) to respond under oath
You can also ask other people for information. For example, you may need documents from your spouse’s employer. They also must respond.
There are penalties for not responding to a formal discovery request
The court can penalize (sanction) someone who does not follow the discovery rules.
For example, if your spouse refuses to answer your questions or provide information, you can ask a judge to order your spouse to follow the law and even pay fees. If they still will not respond, there can be other penalties.
You must finish discovery 30 days before trial
You need to ask for information months before the date that your trial is scheduled to start. Discovery ends 30 days before trial (the cutoff date). That means, at the very latest anything you ask for must be due 30 days before your trial.
At the latest, you need to serve your requests 60 days before your trial date (65 if you serve by mail).