As is often the case in divorce, one spouse may not have a complete knowledge of the marital financial situation. Before productive settlement discussions can occur, both parties must be on the same page and have full financial disclosure regarding all the property and debt they acquired during the marriage.
Agreeing to a property settlement when one party has no understanding regarding assets and liabilities is extremely difficult, if not virtually impossible. Disclosure on everything the couple owns (all assets) and owes (all debts), how they are titled, and the marital value of each must be determined and put on the table. Only then can productive discussions on how to divide everything occur.
The exchange of information and documentation is called “discovery.” It allows time for one party to ask the other to produce a variety of needed financial documents in their possession. It is always easier, faster, and definitely less expensive when both spouses can cooperate with each other and informally exchange the required information between each other and/or their attorneys.
Some of the information that must be exchanged includes copies of tax returns, statements for all bank accounts, statements for all investment and retirement accounts, information on any property owned, statements for any debts owed (credit card, student loan, mortgages/HELOCs, etc.), life insurance policy information, and paystubs for both parties. If one party owns a business, complete information regarding the business interests must be obtained so that a value can be determined.
If one party hesitates, refuses to turn over documentation, or doesn’t want to answer questions being asked, it can be a red flag indicating that they may have something to hide, or they are trying to manipulate some of the financial details. Whatever their ulterior motives, it can severely hamper settlement discussions. Your attorney and/or Certified Divorce Financial Analyst is not going to accept the value of an asset or debt just because one party claims it is so. Conclusive proof to validate any claims must be supplied.
When a friendly exchange of documents does not occur, there are several more formal ways that can legally compel an uncooperative spouse to produce the needed information.
Request for Production of Documents
This is a legal document served upon your spouse or their attorney. It is a written list of the items that are needed, along with a time frame given to provide the documents requested.
These are nothing more than a formal list of questions which your attorney prepares and sends to the opposing side to answer. Typically, the questions should be answered and the completed information sent back within a 30- to 45-day time frame. Frequently, responses are late or may be ignored all together, and then you may need to make a request to the court that requires your spouse to comply.
These give your attorney the chance to ask your spouse a variety of questions and have them answered under oath. Actually, anyone associated with the case who has information critical to the case could be called in for a deposition. Whatever is said will be transcribed by a court reporter, and there will be a written record which can be referred back to.
Don’t start the divorce process assuming the worst. If you are able to communicate and work together, it will make for a more productive settlement. However, you are only in control of your behavior. Unfortunately, you cannot control the behavior of your spouse, so in instances where the other party is not cooperating, knowing that there are measures in place that can help you obtain all the information you need will be reassuring.
Written by Donna Cheswick (Originally published 6/29/2016 DivorceMag.com)