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Discovery in Divorce cases


POSTED BY BVERTZ, APR 18, 2012 • DIVORCE, SETTLEMENT • NO COMMENTS

Resolving a divorce requires a lot of information. The process of exchanging information and documents is formally known as “discovery.” Our courts have issued rules that litigants must follow when requesting discovery and responding those requests. The discovery rules include deadlines for answering requests and procedures for resolving conflicts when litigants do not produce all that is asked of them. Discovery can be a major headache for divorcing spouses. No one has the time and energy to locate and organize hundreds of pages of documents, or answer dozens of questions, but it can be a crucial step in the divorce process. Here are my tips for divorcing spouses who are facing a discovery request:

  1. Don’t wait. When facing any large task, it is tempting to procrastinate, but waiting only adds to the mental pressure. Generally speaking, most discovery requests must be answered within thirty days. The answer must be formatted by your lawyer to comply with the procedural rules, so in actuality, you should provide the information and documents to your lawyer in less than thirty days. Start by reading the request from beginning to end, considering whether you have the information and documents to answer each question. Make a note of the information that you need to gather from storage, accountants, financial institutions, or other sources. Contact those sources early so that they will have an opportunity to obtain the information and documents that you will need.
  2. Understand the objections. When answering a discovery request, the rules allow respondents to raise objections to some of the requests if appropriate. Generally, the objections falls into three major categories: (a) the request is too broad or remote; (b) the information is privileged or irrelevant; or (c) the information is unavailable. Communicate your objections to your lawyer upon your initial review of the request, so that your lawyer can frame your objections in a legally-recognized way or explain why you may have to answer some requests that you object to.
  3. Share the information. It may be time-consuming to answer questions thoroughly and gather documents, but it is worthwhile. If you litigate the case, then your lawyer will need information and documents as evidence in court; and if you do not produce the documents and information that your spouse has requested in discovery, you cannot use it yourself in court. Even if you settle your case, the discovery documents and information will be useful. Settlements generally require “full and fair disclosure,” which means informed consent. If you have not exchanged information and documents in discovery, your spouse might be able to challenge the validity of your settlement later, due to lack of full and fair disclosure.

Discovery is one of the most significant mileposts on the journey to resolution of a divorce. Without complete, accurate information, it is nearly impossible to settle or litigate child support, division of marital property, or other financial issues in divorce. Information is not useful if it is locked in your head. Share it with others through discovery.

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Common Law Marriage

Oklahoma is one of only a few states to recognize common law marriages. But it’s not as common as it might seem.

Are my lover and I common law spouses after living together for six months?

Not on that basis alone. Common law marriage may have more myths associated with it than perhaps any other area of family law. The fact is, the existence of a common law marriage in Oklahoma is hard to prove. Cohabitation, using the same last name, combining finances, jumping over broomsticks at a party, and other actions said to establish a common-law marriage are just pieces of a much larger puzzle. By themselves, they mean nothing.

How does one prove a common law marriage?

Most marriages are established by following statutory procedures. They are commonly called ceremonial marriages, and the spouses who use the legal procedures are considered officially legally married. Oklahoma is one of only a handful of states (8 at last count) to recognize consensual non-ceremonial marriages. These are called common law marriages. They are formed by the consent of the parties who enter into the marriage, without meeting all the state requirements, such as a ceremony or a license. Common law marriage is a combination of state of mind and particular actions.

Oklahoma case law sets forth a five-part test to establish a common law marriage:

  • An actual and mutual agreement between the spouses to be husband and wife;
  • A permanent relationship;
  • An exclusive relationship;
  • The parties to the marriage must hold themselves out publicly as husband and wife, and;
  • Cohabitation as man and wife (There is actually a split of authority on this particular standard).

The party asserting a common law marriage must prove all of these elements by clear and convincing evidence. Relevant evidence would include joint income tax returns, joint financial accounts, jointly held assets, joint credit, medical records, insurance records, introductions and comments to third parties, hotel receipts, and any number of other forms of documentation. If clear and convincing evidence is missing as to any part of the above referenced test, the claim of a common law marriage will fail. Obviously, each common law marriage case is determined on its own facts.

Common law spouses who want to end their relationship must use the courts to get divorced, just like people who are legally married under state law.

Source:

http://www.divorcenet.com/states/oklahoma/common_law_marriage_in_oklahoma

By Tulsa Attorney David Tracy.