It is critical to understand your financial picture when you are going through divorce. Often, your spouse holds important information about your finances that you do not have access to. There are several mechanisms through which you can obtain your spouse’s financial information, all of which fall under the general process called “discovery.”
Financial disclosure is mandated by law
In family law cases, full, financial disclosure is mandated by law. That means that both parties to the divorce action are required to exchange complete financial disclosures prior to finalizing their divorce. However, often, the mandatory financial disclosures are lacking in critical information about the value of a business, the true income of the other party or the value of certain assets.
Your options if the disclosure doesn’t have enough of your spouse’s financial information
In the event that the information contained in the mandatory disclosures is insufficient to enable you to determine the value of assets and liabilities or to determine what the other spouse’s compensation is for purposes of calculation of support, you can issue formal discovery requests in the form of a Request for Production of Documents, Interrogatories (Special or Form), Requests for Admissions, Subpoenas, and Notices of Depositions.
Each discovery tool requires the responding party to provide information requested in the discovery. For instance, if one party issues a Request for Production of Documents, the responding party is required to respond to the request and provide all documents responsive to the request within 30 days. Likewise, Interrogatories and Requests for Admission require the responding party to respond, in writing and under penalty of perjury, to the questions asked in the Interrogatories or Requests for Admissions.
Depositions require the person being deposed to appear and answer questions under penalty of perjury and subpoenas require third parties (i.e. employers and financial institutions) to provide documents related to the other party.
Which discovery tools are right for you?
To learn which discovery tools would be right in your case, call Rachel Castrejon.
Generally, both spouses are responsible for paying any tax, interest, or penalties from their joint tax return. If you are going through a divorce and believe your current or soon to be former spouse should be solely responsible for an error or an underpayment of tax from your joint return, you may be eligible for innocent spouse relief. By filing a Request for Innocent Spouse Relief (IRS form 8857), you can ask the IRS to consider granting relief based on certain factors, including, but not limited to:
- Your current financial situation
- How involved you were with your family finances and preparing the tax returns
- Whether you were (or are) a victim of domestic violence.
While your request is being considered, the IRS generally cannot collect any tax from you for the year(s) you request relief, but it does extend the amount of time the IRS has to collect any tax owed.
You must meet all of the following conditions in order to qualify for innocent spouse relief:
- You filed a joint return which has an understatement of tax, due to unreported income or incorrect deduction, of your spouse (or former spouse).
- You establish that at the time you signed the joint return you did not know, and had no reason to know, that there was an understatement of tax.
- Taking into account all the facts and circumstances, it would be unfair to hold you liable for the understatement of tax. According to the IRS, divorce, separation or desertion are examples of unfairness.
- You and your spouse (or former spouse) have not transferred property to one another as part of a fraudulent scheme. A fraudulent scheme includes a scheme to defraud the IRS or another third party, such as an ex-spouse.
The IRS will make a determination within 6 months of the filing of a request for Innocent Spouse Relief. By law the IRS must contact your spouse or former spouse concerning your request.
If you are going through a divorce and you are paying taxes for income that you were unaware of, you should speak with a lawyer to determine whether filing for innocent spouse relief is an option.
Obtaining a Domestic Violence Restraining Order
To obtain a domestic violence restraining order, the abused party must show that it was more likely than not that he or she suffered abuse by the other party. Requests for Domestic Violence Restraining Orders are usually made to the judge of the Superior Court in the County in which you reside. While the judge will grant or deny your request for a temporary restraining order within hours of filing the request for a restraining order, obtaining a long-term restraining order usually requires a trial in front a judge where live witness testimony is taken. The party claiming abuse will generally testify to the abuse he or she has suffered and can call any other witnesses to the abuse. The person being accused of abuse will also be permitted to testify, cross examine the witnesses and bring his or her own witnesses. After all the witness testimony and evidence is submitted to the judge, the judge will review the evidence and decide whether to grant or deny the request for restraining order. If granted, the permanent restraining order can last up to five years
Permanent Restraining Order
A permanent restraining order is entered in a statewide database and is available to law enforcement agencies and employers who conduct a background check. The restrained party could suffer job and income loss as a result which could also affect the restrained party’s ability to pay child and spousal support. Whether you are the restrained party or the protected party, you should consult with an attorney to determine the benefits and consequences of having a restraining order in place.