Limits to Discovery

In a previous post , I provided an example of a request for production of documents in pre-trial discovery. In this post, I consider the limits to discovery.

As we saw, discovery can be conducted with a request for production of documents (an RFP), through interrogatories (literally twenty questions), and depositions (taking oral testimony).

Pre-trial discovery has often been labelled as “fishing expedition” because of the breadth of requests that can be made. For instance, you can ask for all of your spouse’s payslips for the past five years. At the end of the day, the trial judge (or discovery commissioner) is the only one that can determine if your discovery requests are excessive.  You will need to petition the court (via a motion) for the judge to make a ruling.

In general, the court may curtail the scope of discovery “if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.”   Burden refers to time, cost to dollars, and instrusiveness to the notion of a right to privacy. For instance, should your ex-spouse be able to read all of your emails since your separation?  

Something is discoverable, “if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement” and this is usually interpreted very liberally - it does not have to be something that can introduced into evidence at the trial. At the end of the day, the judge (or discovery commissioner) will have to make a determination on how burdensome, costly, or instrusive the request and the benefit of the insight that the requesting party may gain.

The judge may be particularly sensitive to whether the same information could be obtained another way or whether the request is duplicative. For instance, requesting five years of payslips to determine your income when the same information is available through the tax returns you have already provided may be seen as unnecessarily burdensome.  Once again it is up to the judge.

On the bright side, priveleged information is generally not discoverable (such as a letter between you and your lawyer or a conversation between you and your doctor).  

How courts disenfranchise fathers

This is a must read article for fathers about to enter the Family Court (by Barbara Kay writing in Canada’s National Post).

Some highlights:

“…justice and judgments are two separate animals — is that although a judge must be knowledgeable in the law, he may also be a social idiot, with zero interest or ability in reading human behaviour, as well as blind to his own bias”

“In 90% of disputed custody cases mothers walk away with “primary care” (in effect sole custody) of their children because, deservedly or not, judges feel sorry for them and find a technical or legal opening to issue the judgment they have already made in their hearts.”

“…judges who aren’t up to date on the facts of domestic violence, and so base rulings on myths and stereotypes; a “disconcerting proportion” of judges who don’t know the law they are supposed to be applying or don’t care to apply it when they do know; judges who ignore evidence, affidavits and expert testimony that favour the father; judges who defer “difficult” (i.e., mother-unfriendly) decisions until it is too late; judges swift to punish fathers for support payment lapses, but loath to impose consequences on mothers who flout access orders.”

Proposed Congressional Resolution on Joint Custody

I thought I would post the full text of a recent House of Representatives bill intended to show support for joint custody. One of the interesting aspects of the bill is that it collects a bunch of statistics on the effects of fatherless households (and the benefits of joint custody) in one place.

(HT:Kelly Mac)

H. Con. Res. 241: Expressing the support for the enacting of joint custody laws for fit parents, so that more…
Bill Status
Introduced: Oct 25, 2007
Sponsor: Rep. Roscoe Bartlett [R-MD]
Status: Introduced

You are viewing the following version of this bill:

Introduced in House: This is the original text of the bill as it was written by its sponsor and submitted to the House for consideration.

Text of Legislation
HCON 241 IH

110th CONGRESS

1st Session

H. CON. RES. 241
Expressing the support for the enacting of joint custody laws for fit parents, so that more children are raised with the benefits of having a father and a mother in their lives.

IN THE HOUSE OF REPRESENTATIVES

October 25, 2007

Mr. BARTLETT of Maryland (for himself and Mr. ABERCROMBIE) submitted the following concurrent resolution; which was referred to the Committee on the Judiciary

——————————————————————————–

CONCURRENT RESOLUTION
Expressing the support for the enacting of joint custody laws for fit parents, so that more children are raised with the benefits of having a father and a mother in their lives.

Whereas, in approximately 84 percent of the cases where a parent is absent, that parent is the father;

Whereas if current trends continue, half of all children born today will live apart from one of their parents, usually their father, at some point before they turn 18 years old;

Whereas when families (whether intact or with a parent absent) are living in poverty, a significant factor is the father’s lack of job skills;

Whereas committed and responsible fathering during infancy and early childhood contributes to the development of emotional security, curiosity, and math and verbal skills;

Whereas an estimated 19,400,000 children (27 percent) live apart from their biological fathers;

Whereas 40 percent of the children under age 18 not living with their biological fathers had not seen their fathers even once in the past 12 months, according to national survey data;

Whereas single parents are to be commended for the tremendous job that they do with their children;

Whereas the United States needs to encourage responsible parenting, by both fathers and mothers whenever possible;

Whereas the United States needs to encourage both parents (and extended families) to be actively involved in children’s lives;

Whereas a way to do that is to encourage joint custody so that parents share children;

Whereas the American Bar Association found in 1997 that 19 States plus the District of Columbia had some form of presumption for joint custody, either legal, physical, or both, and since then, 13 additional States have added some form of presumption, bringing the current total to 32 States plus the District of Columbia;

Whereas Census Bureau data shows a correlation between joint custody and a higher payment of financial child support;

Whereas social science literature shows that children are generally well adjusted in an intact family with 2 parents in the home, and research also shows that for children of divorced, separated, and never-married parents, joint custody is strongly associated with positive outcomes for children on important measures of adjustment and well-being;

Whereas research by the Department of Health and Human Services shows that the States with the highest amount of joint custody subsequently had the lowest divorce rate; and

Whereas parents with joint custody pay 50 percent more in child support than parents with visitation only or no contact with the child: Now, therefore, be it

Resolved by the House of Representatives (the Senate concurring), That Congress expresses support of the States passing joint custody laws for fit parents, so that more children are raised with the benefit of having a father and a mother in their lives, careful to protect victims of domestic violence, abuse, neglect, children from potential kidnapping by a parent.

Leaving Las Vegas: Relocation or Move-Away Issues

Can a custodial parent leave the state of Nevada after divorce?

In theory, the answer is “not without the consent of the noncustodial parent or permission of the court”. In reality, the court rarely denies permission.

The relevant statute is:

NRS 125C.200  Consent required from noncustodial parent to remove child from State; permission from court; change of custody.  If custody has been established and the custodial parent intends to move his residence to a place outside of this State and to take the child with him, he must, as soon as possible and before the planned move, attempt to obtain the written consent of the noncustodial parent to move the child from this State. If the noncustodial parent refuses to give that consent, the custodial parent shall, before he leaves this State with the child, petition the court for permission to move the child. The failure of a parent to comply with the provisions of this section may be considered as a factor if a change of custody is requested by the noncustodial parent.

Courts in Nevada claim to rely on the “Schwartz factors” outlined in a 1991 Nevada Supreme Court case:

1. the extent to which the move is likely to improve the quality of life for both the children and the custodial parent;
2. whether the custodial parent’s motives are honorable, and not designed to frustrate or defeat visitation rights accorded to the non-custodial parent;
3. whether, if permission to remove is granted, the custodial parent will comply with any substitute visitation orders issued by the court;
4. whether the non-custodian’s motives are honorable in resisting the motion for permission to remove, or to what extent, if any, the opposition is intended to secure a financial advantage in the form of ongoing support obligations or otherwise;
5. whether, if removal is allowed, there will be a realistic opportunity for the non-custodial parent to maintain a visitation schedule that will adequately foster and preserve the parental relationship with the non-custodial parent.

The court also listed six sub-factors for deciding factor (1) “the extent to which the move is likely to improve the quality of life for both the children and the custodial parent.” These are:

1. whether positive family care and support, including that of the extended family, will be enhanced;
2. whether housing and environmental living conditions will be improved;
3. whether educational advantages for the children will result;
4. whether the custodial parent’s employment and income will improve;
5. whether special needs of a child, medical or otherwise, will be better served; and
6. whether, in the child’s opinion, circumstances and relationships will be improved

Increasingly, though, the best interest of the child has become synonymous with the best interest of the custodial parent (usually the mother). In Trent v Trent (1995), the Nevada Supreme Court warned District Courts against using the relocation statute “as a means to chain custodial parents, most often women, to the state of Nevada”.  Since Trent, proposed moves have almost always been approved when the primary custodian is seeking to relocate and has a “good faith” reason (other than seeking to remove the non-custodial parent from the child’s life). McGuiness v McGuiness [1998] even goes so far as to venture that alternate methods of maintaining a meaningful relationship include “telephone calls, email messages, letters, and frequent visitation”.

The Case of Joint Custody

In cases of shared or joint physical custody the court has a little bit of a problem because the relocation would essentially sever any joint custody arrangements.   In Hayes v Gallacher (1999) the Nevada Supreme court holds that “even if a relocating parent is moving for illegitimate reasons or to an unreasonable location, that parent should retain primary custody and be allowed to relocate with the child if he or she shows that the relocation would be better for the child than a transfer of primary custody to the other parent.” So basically a full custody hearing is held to award primary custody to one of the parents. In this case, the father had a finding of domestic violence that created a presumption against custody even when the mother’s foreshadowed move to Japan was seen as unreasonable.

In the same decision, the court also advocated the American Law Institute’s view on primary physical custodty, namely that: “A parent who has been exercising primary residential responsibility for the child should be allowed to relocate with the child so long as it is for a legitimate purpose and to a location that is reasonable in light of the purpose. A relocation is for a legitimate purpose if:

• it is to be close to family or other support networks,
• for significant health reasons,
• to protect the safety of the child or another member of the child’s household,
• to pursue an employment or educational opportunity, or
• to be with one’s spouse [or spouse equivalent, if such is defined in Chapter 6] who is established, or who is pursuing an employment or educational opportunity, in another location.
• The relocating parent has the burden of proving the legitimacy of any other purpose.

A move with a legitimate purpose is reasonable unless its purpose is shown to be substantially achievable without moving, or by moving to a location that is substantially less disruptive of the other parent’s relationship to the child.”

Finally, in Potter v Potter (2005), the Supreme court held that a parent with joint physical custody is not eligible to relocate with a minor child but must first gain primary physical custody. The moving parent has the burden of establishing that it is in the child’s best interest to relocate outside of the state with the moving parent as the primary physical custodian.

No statistics are kept on the proportion of mothers obtaining primary physical custody in Nevada. One famous Massachusetts study found mothers received primary physical custody in 93% of cases (despite distorting the figures to claim men obtained custody in 70% of cases “when they wanted it”). 

Bottom line: If you are a non-custodial parent you have very little chance of fighting a relocation. If you are joint custodial parent you will need to fight like hell to prove its in your child’s best interests to stay in Nevada. 

How to not lose your house in a divorce

(See also Negative Equity and Divorce)

The court has the ability to grant “exclusive possession” of the marital residence to one of the parties while the divorce proceedings are still in progress. This means that the evicted party cannot enter the house without the permission of the occupant and can literally be arrested for trespassing. That also means you cannot enter and take any of your possessions from the house.

According to this article  in the Las Vegas Review Journal, fewer than 20% of motions for exclusive possession are denied. Meaning you have an 80%+ chance of being evicted from your own home should a motion for exclusive possession be filed against you. 

One of the judges in the article cites three grounds for allowing divorcing couples to stay in the marital home: 1) lack of financial resources to establish two separate households 2) the best interests of the children and 3) no history of domestic violence. 

So the judge has given clear guidance on how to stay in your home:

1) demonstrate a lack of resources to establish a second household (which is why lawyers tell you NOT to move out of the home - I guess this would even extend to staying temporarily at a family or friend’s home),  

2) demonstrate it is in the best interest of your kids to stay home (can be tough to prove - expect her to argue that the tension you both living under the same roof is psychologically damaging the children)

3) avoid a domestic violence charge (another tough one - there are numerous cases of false domestic violence charges AND judges erring on the side of caution even without physical evidence of any abuse - see this link for a wake up call).

(Of course, when the divorce is finalized you will need to give half of your equity in the house to your ex-spouse - this might entail selling the house or, if you are very lucky, you might be able to re-finance the house and buy out her equity - if you ever agree on what the equity is worth).

In my case, I had moved out of the house to escape constant verbal abuse and had rented a single room in a friend’s house. Not only did the judge award exclusive possession to my soon to be ex-wife but also ordered me to continue paying all mortgage and utility payments as well as child support. The judge also refused to order my ex to get a job - despite the fact that the children were teenagers and she had a teaching license. My ex ended up living in the house for almost 3 years rent free without any bills while collecting child support and taking up to 90% of my net income every month. Welcome to the “justice” system. (BTW, she also made it difficult for realtors to show the house to potential buyers - even when the court ordered that the house be placed on the market).

Best State for Divorce?

Is Nevada the best state for a divorce? Popular wisdom has held this to be the case and Nevada has the highest divorce rate of any state (probably because many people establish residency for six weeks to take advantage of the quick divorce laws).

On the positive side, the six week residency rule is the lowest of any state, and after establishing residency you can get an uncontested divorce in as little as 48 hours. As a no-fault state, you do not need grounds for divorce like some other states. Nevada is also a community property state, so any assets acquired during the marriage are split 50-50. There is also a formula for child support that reduces litigation and uncertainty.

On the down side, it can take years for a contested divorce to go through. The three biggest time wasters are: custody disputes (which often require court-ordered evaluations), alimony (no formula and hence lots of room for argument), and division of business assets (what is a company worth?). It is not unusual for such complex cases to last two years or more with numerous motions, discovery, and hearings.  Also, assets that continue to increase in value (like 401k accounts and business assets) are still considered community property until the final decree is issued (unlike California where community property ceases when the complaint for divorce is filed).

The bottom line: Nevada is great for an uncontested divorce but in a contested divorce you may not get the speedy resolution you are looking for.  Nowhere is the old adage “time is money!” more true than in family court.

Motion to Show Cause

A motion to show cause (why you should not be held in contempt) is simply a claim by one party that the other party has violated the court’s orders and should be required to a give a reason why they shouldn’t be held in contempt (and penalized) by the court. Examples could include hiding assets, failing to provide documents, denying visitation, not paying child support or alimony, or violating a restraining order.

The court has wide powers to punish someone who disobeys its order, including financial penalties and jail time. The court usually gives someone a chance to remedy the behavior (such as paying child support arrears and attorney fees) before ordering jail time. Judge Pomrenze of the Clark County Family Court in Las Vegas Nevada is infamous for jailing a lawyer who argued with her (she refused to hear his motion without an affidavit of financial condition). Contempt extends to violating a judge’s orders both directly (i.e. inside) and indirectly (i.e. outside) the court.

The Nevada Revised Statues (NRS 22.100) indicate the maximum penalty for a contempt is $500 or 25 days in  jail. However, NRS 22.110 goes on to say “when the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be imprisoned until he performs it”. Ouch!

Motions for contempt in divorce cases are often brought against fathers for failing to pay child support or violating protection orders. In my experience, the court is very reluctant to find a mother in contempt for violating a visitation order (the most common complaint of fathers).

Bifurcation and Community Property

An interesting difference in divorce laws between California and Nevada is the treatment of community property. In California, accumulation of community property occurs when the petition for divorce is filed. In Nevada, community property continues to accrue until:

a) the final decree of divorce is signed by the judge

b) the parties stipulate (agree) to stop the accumulation

c) the judge orders a bifurcation

Bifurcation is the term used to separate the issues in the case. For instance, the judge can grant the divorce (thus ending community property) but defer ruling on property and alimony issues. Curiously, judges in Nevada hardly ever do this.

Why is this important? In my case, my 401k continued to appreciate for over two years before the accumulation ended - providing tens of thousands of dollars to my ex. Conversely, my house price fell $100,000 in two years and the loss was split equally.   

In this case, I think California has it right!

Pre-Trial Discovery

According to Wikipedia: discovery is the pre-trial phase in a lawsuit in which each party through the law of civil procedure can request documents and other evidence from other parties or can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for production and depositions. The US is unique among common law countries in having a discovery process.

In family court in Nevada, the judge will set a trial date and a discovery cut-off date once the parties indicate that they cannot reach a settlement (via a joint conference report). The trial may occur as far out as 6 months or more from the date of the joint conference report and discovery may end only 14-30 days before trial. Both sides then have this period to conduct discovery. The nominal purpose of discovery is to collect facts to build a case for trial.  In practice, discovery can become very expensive.  As Wikipedia states: The use of discovery has been criticized as favoring the wealthier side, in that it enables parties to drain each other’s financial resources in a war of attrition. For example, one can make information requests which are expensive and time-consuming for the other side to fulfill; produce hundreds of thousands of documents of questionable relevance to the case; file requests for protective orders to prevent the deposition of key witnesses; and so on.

The major forms of discovery are: request for production of documents (RFPs), interrogatories, and depositions. Basically, each side can ask the other side to produce any document they wish (including electronic documents), can ask up to 20 questions, and conduct sworn interviews of witnesses that are recorded and can be produced as testimony at the trial. You are required to make your best efforts to provide documents, answer questions, and attend depositions. In theory, the court can fine a party for not responding to discovery requests (without very good reasons). The Nevada courts even have a discovery commissioner to hear complaints.

I say “in theory” because things work very differently in practice. I prepared my own RFPs and interrogatories using Bender’s Forms of Discovery to save on legal fees (even lawyers don’t make up their own discovery requests - they consult this manual). After 3 months, I received no response from her attorney and the discovery commissioner’s office never returned my calls.  With only 14 days to trial, I filed a motion (on an order shortening time) before the judge requesting that the opposition be found in contempt for not responding to ANY of my discovery requests.  The judge refused to hear the motion before trial. The opposition then filed a motion (on an order shortening time) requesting that the trial be delayed because I did not respond to THEIR requests (despite the fact they had received hundreds of pages of information from me). The judge granted their motion (forcing me to cancel an overseas business trip to attend the hearing) and delayed the trial another six months. My sin was not including monthly payslips from 4-5 years ago because our HR system did not have data going back that far. The judge determined that I did not make my best efforts to get the information (despite including five years of W-2 and 1040 tax returns). So, I was admonished despite the fact they had given me NO information.  They were not penalized in any way and I was ordered to continue paying 90% of my income in temporary support for another six months until the new trial date.

BOTTOM LINE:

1. Discovery requests are easy to make by using Bender’s Forms of Discovery.

2. Discovery can be very costly (particularly depositions where you must pay for your lawyer to sit through the testimony and a court reporter).

3. The court may decide your best efforts to get information are not your best efforts and fine/penalize you as it sees fit

4. The court may allow the opposition to delay and withhold information without penalty.

Emergency motions

Any time during the divorce proceedings, either party may file a motion with a request for an order shortening time (OST).  This basically requests the judge to sign an order that allows the motion to be placed on the judge’s calendar as soon as possible.

Obviously, an OST is very important if some issue is time sensitive and requires the court to make a quick decision. Normally, a delay of 4-6 weeks can be expected after filing a motion - whereas 1-7 days might be more common for a motion with an approved OST.

In my experience, my ex has filed three OSTs that the judge has granted - one claiming the children needed “urgent” psychological treatment because I cut off their cable, and the other because my ex needed a ruling to meet a college application deadline. In my opinion, the OSTs were both bogus and used to get other issues in front of the judge while citing an ”emergency” involving the children.  

My sole request for an OST to order production of discovery documents immediately before trial was denied - in this case her lawyer had provided zero responses to my discovery requests just two weeks before trial and had not submitted a pre-trial memorandum as required by court rules. My request was denied despite the fact that I had no information to make a case.   Her counsel then filed a motion under OST claiming that he had not received certain discovery documents (from the hundreds of pages I had submitted) and the judge not only granted the OST but postponed the trial for six months after the hearing!

LESSONS LEARNED 

What can I conclude from this? OSTs are solely at the discretion of the judge. Any OST that screams about an emergency (physical or financial) for a wife or children will likely be granted. I tend to imagine that judges use the “headline test”, thinking, “would I like to see this story on the front page on the newspaper in the morning?”.

Procedural motions are unlikely to be granted (unless you are a lawyer who has donated to a judge’s election campaign).

 Just my $0.02 worth - comments always welcome.