The first offense when you believe your spouse is not disclosing assets is to serve the opposing party with full and complete discovery requests.
Discovery requests typically contain questions and requests for the production of documents, which can be targeted towards financial information that may allow you to obtain more accurate disclosures with regard to income and expenses.
Generally, these requests are required to be attested to under oath. If you believe the opposing side will not accurately disclose financial information even after being served with discovery, your attorney may want to seek the issuance of a subpoena.
To issue a subpoena, your attorney will need basic information with regard to where to serve the subpoena (i.e. the bank name, employer name, etc.) Subpoenas are used to obtain original documentation directly from the source of the information.
Cases that involve no paper trial, or “cash under the table,” are one of the hardest to establish in terms of financial information.
Oftentimes, these cases require analysis of spending patterns or habits to prove the absence of documentable income. In complex cases, a forensic accountant or analyst may be employed to assist in the uncovering of hidden assets or income.
One of the many benefits to having an attorney is the formal and informal discovery that we can do in a divorce, especially if there is a fear that a spouse is not fully disclosing assets.
For example, we can send out a request for admissions to have the spouse admit where all of their bank accounts are located and what the current balance of those accounts is, then we can request recent statements from all of those accounts.
We can also request authorizations to contact each financial institution regarding accounts in their spouse’s names. We can also personally send out subpoenas to request this information.
If it is more material assets that we feel the spouse is not disclosing, we can have an in-home appraiser conduct a walk-through of the home if we believe that the spouse is under-valuing or not disclosing items.
If the parties have joint accounts, we also tell our clients to take a close look at the accounts and look for larger than normal withdrawals or suspicious activity to make sure that their spouse wasn’t setting funds aside in order to prepare for the divorce.
Each of these items requires that we start working as early as possible on requesting these items in case the spouse is making the process more difficult than it should be. That way, we have ample time to ask the court to issue discovery orders or for items to be valued.
Start with a discovery request. Request that the spouse provide bank statements for all accounts, pay stubs, credit card statements, retirement and investment account statements, etc.
Oftentimes, if a spouse is diverting assets, we will be able to see large withdrawals from existing accounts or lots of money being transferred between accounts. If regular discovery doesn’t uncover what you’re looking for, then you can hire a forensic accountant or private investigator to follow up.
Depositions can also sometimes be helpful in trying to uncover information since most people when placed under oath and faced with a court reporter are more honest than they would otherwise be.
There are various discovery tools that we utilize to gather information on an opposing party’s assets, such as interrogatories and requests for production of documents.
If a client feels his spouse is not fully disclosing her assets, by not answering an interrogatory, you can file a motion to compel whereby the court may order the spouse to answer the interrogatory. If the spouse is not producing a document that is requested, you can likewise file a motion to compel asking the court to order them to produce that document.
If even after court intervention you feel as though your spouse is not fully disclosing assets, you can subpoena a record directly from the entity where the asset is held.
For example if you think your spouse is not fully disclosing what is in her 401K, you can subpoena that record directly from the records custodian of the entity where her 401K is maintained. Sometimes going directly to the place where the asset is held is the best way to get an accurate disclosure.
A good place to start is formal discovery through pattern and non-pattern interrogatories and requests for production.
Often those answers can produce clues or other information. Depending on what the discovery reveals, you and your attorney may decide that a deposition of your spouse, or, a records custodian — i.e. a bank or other financial institution — will uncover additional details.
For instance, if you have good reason to believe your spouse has an account or accounts with Edward Jones, you could request authorization from the court to depose a records custodian at Edward Jones.
That individual would be required to produce any and all documents associated with your spouse, and you and your attorney could review said documents.
If you feel that your spouse is not disclosing all their assets, you can subpoena bank records to see what transactions have been occurring.
If you are unsure of where the assets might be, you can perform a bank sweep by sending subpoena’s out to various local banks to see if they have any records in her name.
While this can sometimes be costly, if successful in finding records, it can be worth it in the end.
If a guy does not feel his wife is disclosing all her assets in a divorce, he needs to take advantage of the discovery process.
Every state has its own rules for discovery, and all states have relatively similar discovery tools available. Once a divorce complaint is filed, discovery is permissible.
At that time, discovery by way of interrogatories (written questions to which the other side must provide complete answers, under oath), request for production of documents, request for admissions, depositions and requests for documents from third parties directly, may be submitted to opposing party for completion or cooperation.
If a party fails to comply with discovery, there are means by which you can compel compliance through the court. Discovery is not optional and often a refusal to cooperate in same is sanctionable.
Further, your attorney can advise you as to whether you need to take it a step further and subpoena information from local banks or financial institutions whom you believe may hold assets in which the other party has an interest.