Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

What Does Discovery Mean in a New Jersey Divorce Case?

As a New Jersey Divorce Attorney, virtually every case has a “discovery” period.  Simply put, it allows each party to “discover” facts that may be relevant to either a settlement or, in the alternative, trial.  Early in the discovery phase “experts” are appointed by Court Order.  In a New Jersey Child Custody dispute, either a certified Child Custody Expert shall be appointed or, depending upon the facts, a Guardian Ad Litem shall be appointed.  In a NJ Divorce, if one or both parties are self-employed, a forensic accountant shall be appointed to both place a value on the business and produce a report that discloses that spouses “true income.”  Other experts are typically ordered to valuate real estate and pensions.  While the experts do their thing, the lawyers plenty of other facts to discover.  Following are the tools New Jersey Divorce Lawyers utilize to ascertain these facts.

Discovery is typically broadly allowed in divorce actions. The rule that governs discovery in general is Rule 5:5-1. It allows interrogatories, depositions, production of documents, requests for admissions, and copies of documents. Pursuant to subsection (a) and (b), interrogatories as to all issues in all family actions may be served by any party. Furthermore, an interrogatory requesting financial information may be answered by reference to the case information statement. Pursuant to subsection (c), depositions of any person, excluding family members under the age of eighteen, and including parties or experts may be taken as to all matters except those relating to the elements that constitute grounds for divorce. Aside from interrogatories and depositions, all other discovery in family actions is permitted only by leave of court for good cause shown except for production of documents, request for admissions, and copies of documents referred to in pleadings, which are allowed as of right pursuant to subsection (d). Lastly, subsection (e) of the rule requires that all discovery is completed within ninety days from the date of service of the original complaint in actions assigned to the expedited track of case management. Moreover, all discovery must be completed within one hundred and twenty days  from the said date in actions assigned to the standard track of case management. Finally, time for completion of discovery will be prescribed by case management order for cases assigned to the priority or complex case management track.

Interrogatories

The rule that governs interrogatories in a divorce proceeding is rule 4:17-1. Subsection (a) says that any party may serve any other party written interrogatories relating to any matter which may be inquired into. The interrogatories can include a request for a copy of any paper as well. While there are some limitations to interrogatories, for instance in actions to recover for property damage or personal injury cases, there are few limitations in divorce proceedings. It is also important to note the time frame to serve an interrogatory upon someone. Initial interrogatories must be served within forty days after the expiration of the time allowed for service of the last permissible pleading pursuant to rule 4:17-2. Furthermore, when serving the interrogatory, and original and two additional copies of the interrogatory must be served. Additionally, pursuant to rule 4:17-4, interrogatories must be answered within sixty days of being served. It is necessary that only the answer to the interrogatory is supplied to the propounder, who must served copies of the document on all other parties. Lastly, if requested, expert reports are required to accompany the interrogatory answers.

Notice to produce documents

Rule 4:18-1 governs the law on requiring production of documents during the discovery phase. The rule permits a party to serve upon another party a request for the production of documents. The other party has thirty days after service of the request to respond, except that a defendant may serve a response within forty-five days after service of the summons and complaint upon that particular defendant. The rule does not allow the requesting party to serve a notice to produce documents upon a non-party to the suit. A non-party is only required to produce documents in conjunction with a deposition.

Depositions

Pursuant to rule 4:14-1, after the commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of thirty-five days after service of the summons and complaint upon the defendant by any manner, except that leave is not required if the defendant has already served a notice of taking deposition or otherwise sought discovery. If a party is looking to take the deposition of any person upon oral examination, that person must have notice not less than ten days before the examination. The notice must be in writing and must state the time and place for taking the deposition.

Requests for admissions

Requests for admissions are governed by rule 4:22-1. For your convenience, the rule at length is reproduced below:

A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters of fact within the scope of R. 4:10-2 set forth in the request, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after being served with the summons and complaint. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify the answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless stating that a reasonable inquiry was made and that the information known or readily obtainable is insufficient to enable an admission or denial. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial, may not, on that ground alone, object to the request but may, subject to the provisions of R. 4:23-3, deny the matter or set forth reasons for not being able to admit or deny.

Requests for admission and answers thereto shall be served pursuant to R. 1:5-1 and shall not be filed unless the court otherwise directs.

The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The provisions of R. 4:23-1(c) apply to the award of expenses incurred in relation to the motion