Marital Discovery

August 12, 2023

What if you are recovering a judgment against a debtor with a spouse, or who is going to, or already did get divorced; or there is some other kind of marital property situation going on? How can you get all information you need to attempt to recover your judgment?

One of many judgment-related articles: I am a judgment broker, not a lawyer, and this article is my opinion based on my experience, please consult with a lawyer if you need legal advice.

During a couple’s period of separation, the Petitioner has the ability to use subpoenas in their quest to find assets. However, after a divorce is granted, how do you get this type of information? This information is especially important if there were potential hidden assets of substantial worth, that were previously undiscoverable.

What mechanism in the Family Law or Civil statutes does the Petitioner have, to perform discovery? If the Petitioner only completed the required preliminary Schedule of Assets and Debts, however the respondent(s) failed to file one, and refused to cooperate with the Forensic Accountant; should the court have even granted the divorce?

In California, there is really no grounds for courts refusing to grant divorces. I think the last time this happened was in 1786 or so. Although the court rarely orders a settlement, it will firmly inform the parties that they must reach one; however usually the court will not make this mandatory. Like other courts, if family court issues do not resolve through settlement, the court will usually try the issues, and then decide them if necessary.

Even after a marital settlement agreement (MSA) is entered and signed, the parties sometimes still have rights to perform discovery. The terms of the MSA trumps almost everything, so if anyone has given up their rights in the MSA regarding discovery, usually the MSA alone controls how the assets are divided.

Usually, as long as there are ongoing support, debts, or undisclosed property issues; parties can usually take discovery fairly often. This ability does not end when it comes to ascertaining the financial condition of the other party. In California, read Family code 2556 to learn more.

California’s Family code 2556 in a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties; the court has continuing jurisdiction to award community estate assets or community estate liabilities to the parties; if they have not been previously adjudicated by a judgment in the proceeding.

A party may file a post-judgment motion, or an order to show cause in the proceeding; to obtain adjudication of any community estate asset or liability omitted, or not adjudicated by the judgment. In such cases, the court usually equally divides the omitted or un-adjudicated community estate asset(s) or liability(s); unless the court finds with good cause shown that the interests of justice requires an unequal division of the asset or liability. A special situation is an omitted asset. This arises when a party fails to disclose information, to discover such undisclosed assets remain un-adjudicated.

In California, except to modify support, usually there are no discovery procedures; see CCP 708.010.

Once a motion to adjudicate an omitted asset has been filed, then general discovery would be proper. However, such a motion would not be used to enforce an already ordered monetary obligation. The creditor should consult a lawyer in omitted asset situations.

If there are children involved, it is most likely a paternity judgment. Child support can be a factor in a divorce.

On the judgment, look at the names in the caption for who is the Plaintiff/Petitioner. It may have been the Department of Child Support Services, or if it is a really old case, a county District Attorney.

This can create a potential complication when filling out the California EJ-100 form. The EJ-100 form already has typed in plaintiff vs. defendant, and there is no way to remove that to use the proper titles. The answer lies in Family Code sections 126 and 127. For 126, “Petitioner” includes the plaintiff, where appropriate. For 127, “Respondent” includes defendant, where appropriate.

In divorce matters, there are often issues of one party owing money to another. Besides support, there could be equalization, attorney fees, costs, obligations to 3rd-parties for payment of certain debts, indemnification provisions, confirmations of property, etc. Even when arrears in payments are satisfied, there may be active orders for ongoing support. Even if there are not current orders, a reservation of jurisdiction to later order support.

How do you prove a couple is married? Property records are a good start. Many enforcers first check the Clark County, Nevada website; because so many people get married in Las Vegas, and there all public records, and easily accessible on the internet.

Other ideas are locating a copy of a Deed to find the marriage status. Also, you can look for other lawsuits where they were sued as husband and wife. A copy of the “Certificate of Marriage” in the county where they live/lived when they were married, is also worth looking into.

Other proof can exist in credit reports, insurance documents (by subpoena), loan applications (by subpoena) tax documents by subpoena or in bankruptcy situation (use PACER) or in divorce filings. Also handy is, passports (by subpoena), neighbors, other family members. More ideas are to see if the couple is on a tax lien together, or to check if they have purchased real estate property jointly as husband and wife. Let no stone remain unturned.

If you finally recover your family-related judgment, searched the family court, for forms regarding a satisfaction of the judgment.

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