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FAMILY LAW
PRIMER |
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Divorce Discovery In order for the Court to make informed rulings, both
parties need to be able to put on accurate evidence in support of their
claims. Therefore, when there are contested issues in a divorce, discovery is
a very valuable tool when properly utilized. It can be the instrument with
which critical facts and issues come to light. Discovery is basically the process by which a lawyer asks
questions your spouse is legally obligated to answer truthfully under penalty
of perjury. There are several methods of discovering this information and
potential evidence. Request for Disclosure Disclosure is designed to afford parties basic discovery
of specific categories of information, not automatically in every case, but
on request, without preparation of a lengthy inquiry, and without objection
or assertion of work product. A party may obtain disclosure from another
party of specified information or material by serving the other party the
following request: ``Pursuant to Rule 194, you are requested to disclose,
within 30 days of service of this request, the information or material
described in Rule 194, and then cites the applicable subsections it is
requesting, for example, 194.2, or 194.2(a), (c), and (f), or 194.2(d)-(g).
The request of the subsections are: (a) the correct names of the parties to the lawsuit; Interrogatories (Written Questions) Interrogatories are a list of questions that may inquire
about specific legal or factual contentions; as well as asking your spouse to
state the legal theories and to describe in general the factual bases for the
party's claims or defenses. Requests for Production of Documents In a divorce you are entitled to inspect, sample,
test, photograph and copy documents or tangible things that are within the
scope of discovery and within the person's possession, custody, or control.
Documents and tangible things include papers, books, accounts, drawings,
graphs, charts, photographs, electronic or videotape recordings, data, and
data compilations. Possession, custody, or control of an item means that the person
either has physical possession of the item or has a right to possession and
access of the item. The list of items a divorce litigant might need is a
long one. Reports of experts, documents describing a spouse's retirement or
pension plan, data compilations such as mortgage amortizations, present value
calculations, and the like, medical records, and insurance policies are
likely candidates for production requests. Request for Admissions A party may be required, by the use of the requests
for admissions' procedure, to admit the truth of any matter within the scope
of discovery, including: ·
Statements
of fact. ·
Statements
of opinions. ·
Applications
of law to fact. ·
Genuineness
of documents. When a matter is admitted following a request for
admission, that matter is conclusively established in the pending litigation
as to the party making the admission unless the court permits the party to
withdraw or amend the admission Depositions A deposition may be on written questions or on oral
questions. In an oral deposition, questions are usually asked
directly to the deponent, whose answers are recorded by a stenographer or
court reporter, or may be recorded by other means, including audiotape or
videotape, and may be even be conducted over the phone. An oral deposition
offers the opportunity for thorough follow-up on the responses of the witness
to particular questions. This is not possible in a deposition by written
questions. In addition, the oral deposition taken directly provides counsel
an opportunity to observe the manner in which the witness answers the
questions and, if the witness is a party, how his or her attorney handles
both the witness and himself or herself. Although an oral deposition is more
expensive, it is usually preferable to a deposition on written questions. In a deposition on written questions, the questions
are attached to or included in the notice of intent to take a deposition on
written questions. The stenographer (court reporter) then reads the questions
to the deponent, along with any cross questions, redirect questions, and
recross questions timely served after the notice of intent to take the
deposition was received A deposition on written questions is most
valuable as an inexpensive way to obtain and authenticate documents in the
possession of nonparties, and to establish evidentiary facts about which
there is little controversy. Moreover, a deposition on written questions or a
deposition by telephone may be the only practical alternatives when the
witness's residence is distant. However, unlike an oral deposition, a
deposition on written questions does not offer the opportunity for follow-up
on the witness's responses to particular questions. Nor does a deposition on
written questions give counsel an opportunity to observe the manner in which
the witness answers the questions and, if the witness is a party, how his or
her attorney handles both the witness and himself or herself. Selecting the better form for a deposition depends
primarily on who the deponent is and why the deposition is being taken.
Likely individuals for deposing include the client's spouse, a social worker,
a mental health professional, an appraiser, an accountant, a pension-plan
administrator, or even friends, co-workers, and neighbors of the parties. If
the testimony is sought more for introduction at trial (as opposed to
investigation into the facts), a videotaped deposition, although more
expensive, is a better choice. If the testimony is sought simply to authenticate
a document or gather facts and figures, a deposition on written questions
would seem to be the most efficient form. Additional Discovery Measures The establishment of critical evidence may also be
obtained by less common methods, like having the court order both parties to
file a sworn inventory and appraisement of all property, real and personal,
owned or claimed by them. The court may order a professional conduct a social
study that is to be paid for by one or both of the parties, or similarly
order a physical or mental examination. You may obtain sworn witness
statements, as well as subpoena records held by third parties to, and even
compel them to attend a deposition. The trial court may limit the discovery methods
permitted by the Texas Rules of Civil Procedure if it determines, on motion
or on its own initiative, that the discovery sought is unreasonably
cumulative or duplicative, or is obtainable from some other source that is
more convenient, less burdensome, or less expensive; or the burden or expense
of the proposed discovery outweighs its likely benefit, taking into account
the needs of the case, the amount in controversy, the parties' resources, the
importance of the issues at stake in the litigation, and the importance of
the proposed discovery in resolving the issues. Responding to Discovery Requests A party must respond to written discovery in writing
within the time provided by court order or the procedural rules. When
responding to written discovery, a party must make a complete response, based
on all information reasonably available to the responding party or its
attorney at the time the response is made. This rule imposes a duty on
parties to make a complete response to written discovery based on all
information reasonably available, subject to objections and privileges. A party must make any objection to written discovery
in writing. The party must state specifically the legal or factual basis for
the objection and the extent to which the party is refusing to comply with
the request. A party must comply with the part of the request to which the
party has made no objection unless it is unreasonable under the circumstances
to do so before obtaining a ruling on the objection. In other words, an
objection to written discovery does not excuse the responding party from
complying with the request to the extent no objection is made. But a party
may object to a request for ``all documents relevant to the lawsuit'' as
overly broad and not in compliance with the rule requiring specific requests
for documents and refuse to comply with it entirely. A party may also object
to a request for a litigation file on the ground that it is overly broad, and
the party may assert that on its face the request seeks only materials
protected by privilege. A response may be amended or supplemented to state an
objection or basis that, at the time the response initially was made, either
was inapplicable or was unknown after reasonable inquiry. Addressing Noncompliance, Evasion, and Deceit A party may also be sanctioned, after notice and
hearing, for abusing the discovery process by resisting discovery or
responding in a way that is unreasonably frivolous or done for the purpose of
delay. Sanctions may include one or more penalties as the court deems fair,
including fines, fees and costs, disallowing the disobedient party from using
further discovery of any kind or of a particular kind, ordering facts or
matters taken as established in accordance with the claim of the party
obtaining the order, prohibiting the disobedient party from supporting or
opposing designated claims or defenses or introducing designated matters of
evidence, striking out all or part of the disobedient party's pleadings,
staying further proceedings until the order to comply is obeyed, even
dismissing, with or without prejudice, all or part of the action, or
rendering a judgment by default against the disobedient party. |
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