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When Your Spouse Won't Provide Financial Information: Motion to Compel Divorce Discovery

Posted by Aaron Thomas | Jul 17, 2019 | 0 Comments

When Your Spouse Won't Provide Financial Information

If you're going through a divorce, one of the first things an attorney will tell you is to gather your financial information, including bank account statements, credit card statements, title documents, and mortgage documents. Some couples have shared records throughout the marriage, but most divorcing spouses will need to exchange at least some financial documents. This article will explain what you can do if your spouse refuses to cooperate with divorce discovery.

An Overview of Requesting Financial Information During a Divorce

In some states, divorcing spouses must provide each other certain financial information at the beginning of the case, sometimes termed "mandatory discoveries" or "preliminary financial disclosures." If you live in one of these jurisdictions, you and your spouse will have to provide each other with a list of assets and debts, financial account information, credit card balances, and similar information. For example, in Georgia, spouses must provide each other a "Domestic Relations Financial Affidavit" that includes each spouse's assets and debts, income information, and a detailed monthly budget, which identifies all normal expenses for both parents and children.

In some jurisdictions, spouses must also provide each other with certain documents at the beginning of the divorce. Typically, spouses give each other the last few years of tax returns and bank statements, W-2's, and recent financial account statements, such as brokerage and retirement account statements.

Whether you live in a mandatory disclosure state or not, you can send your spouse a formal request for information, typically called a “Request for Production of Documents.” You can also send questions for your spouse to answer under oath, called "Interrogatories". Spouses must answer requests for production of documents and interrogatories, or state their legal objections to producing the requested information.

Using the Court to Force Your Spouse to Provide Financial Information

If your spouse refuses to produce financial information, whether it's under mandatory discovery or a specific request for documents or information, you can take the issue up with the court. Judges who preside over divorce cases know that spouses can't reach fair and informed divorce settlement agreements unless they have all the facts about their marital estates. Family law courts have multiple tools they can use to force spouses to turn over financial information.

First, you can file a “Motion to Compel,” which is a request to have the court order your spouse to turn over documents. Your spouse would be required to file a written response to your motion, indicating the legal reasons for not responding. A judge would then decide whether the requested information is relevant to the divorce case and not protected by any type of legal privilege (such as attorney-client privilege, doctor-patient privilege, or a Fifth Amendment privilege). If the court agrees that the financial information should be turned over, the judge will order your spouse to produce the documents within a certain time.

If your spouse still refuses to produce financial information after the court has issued an order compelling your spouse to do so, you can ask the court to hold your spouse in “contempt,” meaning that your spouse has violated a court order. After a contempt finding, a judge can then impose a variety of sanctions on your spouse, including:

  • monetary fines
  • an attorney's fee award— where your spouse pays for the attorney's fees you incurred in bringing the motion
  • evidentiary sanctions—where the court prevents your spouse from introducing certain evidence at trial, and
  • jail time—ordering that your spouse spend a certain amount of time in jail.

Subpoenas and Depositions

You have other options to obtain financial information besides waiting on your spouse to turn it over. In a divorce, either spouse can directly send a subpoena to third parties with financial information relevant to the case. A “subpoena duces tecum” requires the third-party recipient to turn over documents. Attorneys routinely send these subpoenas to banks, credit card companies, retirement account administrators, and other financial account holders.

Alternatively, you can send a deposition subpoena, which requires your spouse or a third party to appear on a certain date to be questioned under oath with a court reporter present. You can then use information gathered from the witness as evidence in your divorce case. For example, if your spouse owns a business with two other partners, you depose the business partners to gather information about the company's finances.

Attorneys also use depositions to discover information about financial circumstances that may not be apparent from the financial documents themselves. If you want to depose your spouse or a third-party witness, you'll probably need to hire an attorney to help you prepare the subpoenas and take the deposition.

If you have additional questions about obtaining financial information from a spouse during your divorce, you should contact us today.

 

About the Author

Aaron Thomas

Attorney Aaron Thomas began his legal career in 2002, as an in-house staff attorney for Habitat for Humanity International. He then honed his trial skills from 2004 to 2007 at the Dekalb County Public Defender's office, rising quickly through the ranks, representing hundreds of indigent clients facin...

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