Discovery Feed

How Do I Find Out What My Spouse Will Use Against Me in My Divorce?

There are legal tools that exist in the Rhode Island Domestic Relations Rules of Procedure and in virtually every state and commonwealth that a party can use to discover their opponent's claims and what evidence they might have against you.

So what could you use.

In Rhode Island there are several main "Discovery Tools" as I prefer to call them.  They are generally as follows:

INTERROGATORIES

REQUESTS FOR PRODUCTION OF DOCUMENTS AND THING AND EXAMINATION OF LAND

REQUESTS FOR ADMISSIONS

DEPOSITIONS

SUBPOENAS DUCES TECUM

There is an additional one in some jurisdictions that provides in some situations that is a Request for a Mental Health or Medical Examination but it is rarely used in divorce cases as compared to the other tools.

These discovery tools would be used by you or your attorney to find out what your spouse will use against you, the find the strengths and/or weaknesses in your spouse's case, to gain evidence about your spouse's credibility and for other purposes relevant to your case.

Each tool performs in a different way.  Today we will address Interrogatories.

Interrogatories are questions that you may send to the opposing spouse that he or she must answer under oath or objected to within a specific time period set forth by the Rules of the Court.  The answers may be used not only to discovery aspects of your opponent's case but they also may be used at the time of trial for a variety of purposes that support your case or damage the other spouse's case.  In Rhode Island Family Court the number of questions you may ask, including subparts, is limited to thirty (30) unless you obtain approval of the court to ask more questions.

The next article will cover a description of another powerful tool used in divorce cases to learn your opposing spouse's position and to build your own case in the event you are headed for trial or need bargaining leverage for settlement.  

In the series of articles to following their descriptions I will give examples of how each particular tool might be used and perhaps even some of the traps to avoid falling into when you are sent a particular set of documents that must be responded to.

Rule 33 of the RI Rules of Prodedure for Domestic Relations governs interrogatory use in divorce and family court cases and it works in conjunction with Rule 26 which relates to the majority of the other "discovery tools" as you will see later.

Rule 33 as of the writing of this posting is as follows:

Rule 33. INTERROGATORIES TO PARTIES

(a) Availability; Answers; Objections. Any party may serve upon any adverse party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may be served after commencement of the action and without leave of court, except that, if service is made by the plaintiff within twenty (20) days after service upon the defendant, leave of court granted with or without notice must first be obtained. The interrogatories shall be answered separately and fully in writing under oath. The answers shall be signed by the person making them; and the party upon whom the interrogatories have been served shall serve a copy of the answers on the party submitting the interrogatories within forty (40) days after the service of the interrogatories, unless the court on motion and notice and for good cause shown, enlarges or shortens the time. With his or her answers a party may serve specific written objections to particular interrogatories, stating the grounds on which they are based. Failure to serve such objections shall constitute a waiver thereof. Answers to interrogatories to which objection is made may be deferred until an order to answer is entered in accordance with Rule 37(a) upon motion of the interrogating party. Such objections or motion made without substantial justification shall be subject to the sanctions set forth in Rule 37(a).

(b) Scope; Limitations. Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the same extent as provided in Rule 26(d) for the use of the deposition of a party. Interrogatories may be served after a deposition has been taken, and a deposition may be sought after interrogatories have been answered, but the court on motion of the deponent or the party interrogated, may make such protective order as justice may require. A party shall not serve more than one set of interrogatories upon an adverse party nor shall the number of interrogatories exceed thirty (30) unless the court otherwise orders for good cause shown. The provisions of Rule 30(b) are applicable for the protection of the party from whom answers to interrogatories are sought under this rule.

(c) Continuing Duty to Answer. If the party furnishing answers to interrogatories shall obtain subsequently information which renders such answers incomplete, amended answers shall be served not later than ten (10) days prior to the day fixed for trial. Thereafter amendments may be allowed only on motion and upon such terms as the court may direct.

[Rule 33 is Accurate as of November 2, 2012]

Bookmark this website for upcoming articles on other Discovery Tools you can use in your divorce that can help give you an advantage.

All My Best to You on Your Journey Through The RI Family Court,
Attorney Christopher A. Pearsall - "The Rhode Island Divorce Coach"™ 

Affordable Divorce Representation and Coaching for Providence, Kent, Washington and Newport Counties.

Call me for your reduced-cost advice session at (401) 632-6976. 

 


Rhode Island Divorce Quick Tip in Contested Divorce Situations - Subpoena Duces Tecum

In contested RI divorces often the other party doesn't want to comply with providing documents (a Rule 34 Request for Production of Documents) or answering questions (a Rule 33 Set of Interrogatories) under oath.  

When this is the case, the best way to get the information you want is to get it using a subpoena duces tecum to a third-party who may have the same information.

For example, John and his attorney continue with a litany of excuses about why they can't provide the bank account statements for the past 2 years of all bank accounts John's name is on at any financial institution.

Try bypassing John and his divorce lawyer altogether by having a Subpoena Duces Tecum issued and served upon the banks that you think John has been doing business with over the past two years.  Yes, it may cost a few dollars in required witness fees and for the service of the subpoena.  In this way your request for the documents in your divorce action will remain active and you can still pressure John and his lawyer about producing the documents while still making some headway by forcing the banks to produce whatever documents they have on the subject.

Sometimes sidestepping a resistant party by using a subpoena duces tecum which requires the production of documents from the subpoenaed party is the best way to get the information you want and be assured that you have received everything and that the resistant party has inadvertently "left anything out."

 

All my Best to All Who Go Before the Rhode Island Family Court,

I am Attorney Christopher A. Pearsall and I am "The Rhode Island Divorce Coach."


Rhode Island Divorce Lawyer | Attorney Christopher Pearsall on "Family Court Subpoena Power"

Presumably a subpoena holds just as much power in the Rhode Island Family Court as it does in the Rhode Island Superior Court.  However after eight (8) years in practice I have learned that there are differences in the power of a subpoena in the Family Court system.

First, however, let me be clear that the difference in the amount of power a subpoena has or may appear to have in any given legal proceeding has nothing to do with the Rhode Island General Laws or the Rhode Island Procedural rules for Superior Court or Domestic Relations matters.

That being said, the power of the subpoena is diminished because of the weight it is given in each of these forums. 

In the Rhode Island Superior Court the superior court judges appear to give more weight and seriousness to subpoenas than those judges in the Rhode Island Family Court System.  By and large the vast majority of subpoenas that I have seen issued in the Rhode Island Superior Court were taken seriously and enforced by the judge presiding over the case.

In Rhode Island Family Court cases, however, subpoenas and subpoenas duces tecum are treated lightly and have readily become the targets of Motions to Quash, despite the fact that the information requested is reasonable, relevant and even necessary to the case of the issuer.

What litigants should perhaps be most aware of is that the Family Court Justice may take little or no action against a party who has been subpoenaed to court to bring documents, particularly banks, financial establishments, and professionals who may be considered experts.

The moral of this article is that the subpoena is often seen by clients as a "sure thing" to get the information they need to prove their case.  In Family Court it most certainly is NOT a sure thing.  Keep this in mind if your own attorney is stonewalled either by the court or the opposing counsel.  Even though there are procedural and statutory provisions governing subpoenas and their consequences, your attorney is limited to being your advocate.  Once your attorney advocates for your position regarding the subpoena issued on your behalf, he or she thereafter may remain powerless.

In the end, a subpoena's enforcement falls upon the justice who sits upon the bench.  If the Justice fails or refuses to enforce the subpoena, your attorney is powerless to do anything further other than to protect your interests for appeal.

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

Attorney Pearsall's practice is focused almost exclusively in the areas of Divorce and Family law.

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is based on Rhode Island and is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.


Template Discovery: Trap Among Less Reputable Divorce Attorneys

For those going through a divorce who already have a Rhode Island Divorce Lawyer, this may be something you have come across.  It is called "template discovery".  It is not a practice that I participate in.  Some divorce lawyers will justify the practice by stating that template discovery is necessary to prevent a claim by the client of legal malpractice on their part.  I completely disagree.

I am, however, getting ahead of myself.  It is best that I explain what "template discovery" is.

During the course of any litigation process, including divorces and separations, their are certain procedural rules that allow for methods to be used to "discover" the other party's position, asset, etc.  These methods are best referred to as "legal tools" that are afforded to litigants and their attorneys.

One such tool is called "Interrogatories".  These are simply questions that must be answered under oath or objected to by the person to whom they have been sent within forty (40) days of the date they were sent.  The date they were sent is known as the date of certification and it is contained in a formal "Certification" clause at the bottom of the interrogatories and other forms of discovery.  Interrogatories are limited to thirty (30) in number unless a party obtains permission of the Rhode Island Family Court.

Another such discovery tool is called a Request for Production of Documents and Other Things.  This is a document prepared and sent to an opposing party for him or her to produce documents and other relevant things for inspection within twenty (20) days of the date the request was sent as set forth in the "Certification" or to object to the production based upon a legal basis or privilege.  Requests for Production of Documents are unlimited in number and may be sent in numerous sets.  Although the Rhode Island Domestic Relations Rules of Procedure required only that you produce the documents and other things for copying and inspection (presumably at the opposing party's expense), litigants typically produce copies of the documents and other things to the extent possible and mail their to the opposing party to their divorce attorney.

Another discovery tool provided by Rule 36 of the Rhode Island Rules of Domestic Relations Procedure is called a Request for Admissions.  In this document a divorce litigant is ask to admit either the truthfulness of a particular statement or the genuineness or authenticity of a particular document.  Litigants who receive a Request for Admissions have only ten (10) days from the date of Certification on the document to object to the request based upon a legal ground or privilege and only twenty (20) days to file their formal response to the requests that are not properly objected to.  Failure to file the objections in a timely fashion, and failure to file a response within the (20) days is considered a waiver of objection and the genuineness of documents and statements are deemed admitted.

Depositions are also a discovery tool that may be used in the Rhode Island Family Court but permission of the court must first be obtained before a deposition may be taken and depositions are not pertinent to this article.

Now that you understand a bit more about the discovery tools available in a Rhode Island Divorce proceeding you will better be able to understand the concept of "template discovery".

Template discovery is usually reserved to Interrogatories and Requests for Production of Documents.  In essence the divorce attorney has created a set of Interrogatories and/or Request for Production of Documents as a "template".  In other words, the Interrogatories and/or Request for Production of Documents contain every question and every request that the attorney might want to ask in ANY divorce case.  Now a portion of the Interrogatories and the Requests for Production might well relate to your case.  In fact it is possible that that all might relate to your case.  However, these are templates that were created months or even years ago to be used over and over again.  Generally they are given to a secretary the caption is changed to put the name of you and your spouse, the Docket number is changed and the date of Certification is filled in differently.

Now, I must admit that as a divorce attorney this is economical.  You have one set of each document and you send it out in every case.  It saves enormous time for the attorney.  Yet here is the kicker.  If each of those documents took 2 hours to create, even if it was 10 years ago, you'll find in some cases that you as the client are charged 4 hours for these Interrogatories and Request for Production of Documents.  Do you find that fair?  I certainly don't. 

Take a look at the Interrogatories and Request for Production of documents that were sent to your spouse by your attorney.  Do they relate specifically and ONLY to your divorce issues or do they ask for a bunch of things that don't relate to your situation at all?  If they don't, call you divorce attorneys and get your bill.  How much were you charged for "preparing' those documents?  If you see several hours of time on your bill and the discovery isn't specific to your case, you've been a victim of "template discovery" a method used by some divorce attorneys to make extra money without doing the work.

Divorce is hard enough without your own attorney taking advantage of you.  In closing, there is one more thing you may want to consider.  Did your divorce attorney ask your permission before sending out this discovery?

If you've been taken advantage of in the manner described above, ask yourself, don't I deserve better?

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

Attorney Pearsall's practice is focused almost exclusively in the areas of Divorce and Family law.

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is based on Rhode Island and is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.


Rhode Island Divorce Tips: Interrogatories

Whether you've been through a Rhode Island Divorce proceeding yet or not, you may have heard this word in other legal contexts.  The word is "Interrogatories".

In a Rhode Island Divorce proceeding you or your attorney may receive Interrogatories that have been prepared by the opposing party.  Interrogatories are questions that must be answered and signed under oath by the party in the divorce (not his or her attorney) before a notary public. 

In a Rhode Island Divorce proceeding you have forty (40) days from the date of service of the Interrogatories to answer or otherwise object to the questions being asked of you.  If you don't answer or object to the interrogatories within the forty (40) day period then generally you will be deemed to have waived any objections you may have to the questions.

The likely result thereafter is that the opposing party or his or her divorce attorney will file a Motion to Compel Answers to Interrogatories and absent a compelling reason you will be ordered to answer the questions.

So what is the tip? 

1)  Don't miss the forty (40) day deadline if you have any objections.  Keep in mind that this is NOT forty (40) business days.  Weekends and holidays are included in the days a party is afforded in  order to respond. 

2)  Make sure you or your attorney put in valid objections within the forty (40) days, especially if some questions are designed purely to harass you.

3.  Use VALID Objections.  For instance, you can't object simply because you don't want to answer the question.  You can't object just because the answer will hurt you.  You can't object simply because it is going to take you considerable time to answer the question. 

Typically objections will be left to your attorney in order to protect you.  However, this is part of your case.  You should know what your attorney is objecting to, why, and what the attorney stated for an objection.

If you have to object on your own. . . "study up" learn the valid objections and then use them appropriately.

Interrogatories are part of the phase of divorce litigation called "Discovery" and interrogatories are only one of several discovery tools.

Discovery is the portion of the litigation where questions are asked and documents are produced so that facts and information may be disclosed so each party can take his or her various positions and prepare for trial if necessary.  It has its pros and its cons as does each method or discovery tool.

For our purposes today this is only about interrogatories.  Make sure you meet your deadline and make sure you pose your valid objections in time or you could find yourself behind the eightball.

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.