The evidence-gathering phase of your divorce is ongoing, meaning that it’s something you will want to start doing right away and continue doing. The more evidence you gather the better your position in the divorce in most cases.
The process of gathering evidence and information that will be used is known as discovery. This is one of the most important steps in a divorce case, as it can lead to better success at trial. On the other hand, improper or ineffective discovery could end up harming your case. Therefore, it’s good to have an understanding of what needs to be done and different types of evidence.
What Is Rule 49?
One of the most important things to keep in mind regarding evidence is Rule 49. This is a rule in the Arizona Rules of Family Law Procedure that provides the disclosure obligations required in various types of family law cases. The idea of disclosure is simple. It ensures that each party that is involved in the case will have access to the evidence and information that could be used in the case.
Initial Discovery Mandatory Disclosures
It’s important to know that each of the party’s needs to exchange Rule 49 disclosure within 40 days after a response to the petition has been filed. This is typically done by sending out an Initial Disclosure Statement, also known as a Rule 49 Statement. This statement will be sent to the other party or their attorney if they have one. These statements are not filed with the court.
Rule 49 also requires that both of the parties exchange a Resolution Statement and file it with the court. This statement will contain a summarized version of the agreements that the spouses have reached in the case, as well as what positions they are taking on each of the issues that are still being contested.
The items that are required to be in the disclosure will vary based on what’s involved in the case. This could include things like legal decision-making spousal maintenance, attorney’s fees, property, debts, and child support. Naturally, the more complex the divorce, the more that will need to be included.
One of the requirements of Rule 49 is the disclosure of witnesses. Both of the parties are required to provide the names, addresses, and telephone numbers of any witness that they will be calling to act as a witness. They also need to include a summary of the testimony they expect to be given. This will give the other side time to prepare for the witness and what they might say, which could otherwise damage their case.
If a witness has not been properly disclosed, there is a good chance that the family court might not allow the witness to testify. You aren’t going to be calling any surprise witnesses in your divorce case.
In some divorce cases, you might need to call in expert witnesses. If you are going to be retaining an expert for your case, you will also have to disclose these experts and what they are likely to discuss during their expert testimony. You will also need to provide the expert’s qualifications, as well as the name and address of custodian reports the expert might prepare. Not disclosing the expert witness will likely mean that they can’t testify.
The Duty to Disclose Doesn’t End
Throughout the litigation, if there is any additional information discovered or if a position changes, you are required to exchange it with the other party within 30 days of getting this new information.
Send Discovery Requests
Although the other party is supposed to disclose information with you, you might need to send discovery requests, so you can be sure you receive all of the information that the other party has.
Subpoena Information as Necessary
In some cases, where you are not getting the information that you need and that you believe will be important to your case, it might be necessary to file a subpoena. This is a court order that requires the person to provide you with the documents and evidence. Although this will not always be necessary, as information is usually disclosed properly, it could come up in certain cases. It’s an important tool to have, so you can be sure your spouse isn’t trying to hide anything from you that they will then try to use in litigation.
Stay Organized to Save Time and Money
You have a lot to think about when you are getting a divorce, and it can sometimes be difficult to keep everything in order, especially when it comes to evidence. However, if you aren’t organized, you could lose evidence, forget about disclosing certain pieces of evidence, etc. It will also be difficult to locate what you need when it’s needed.
Therefore, you should come up with a system that helps to organize your evidence. You might want to separate it by different types of evidence, for example. The better organized you are, the easier it will be. It will help you to save time, and you won’t be wasting money when working with an attorney. The longer it takes for them to gather evidence or get it organized, the more you will pay. Being organized from the start could reduce your costs and frustration.
Talk with an Attorney
There is a lot to think about when it comes to gathering evidence in a divorce. This includes not only the gathering of the evidence but also disclosure. You have to do things according to the law, and even though some of the evidentiary rules have been relaxed in Arizona over the years, you still need to abide by the requirements.
There are many things to consider, and even when you are organized, there is a chance that you could forget something that will cost you later. The best option is to work with an experienced divorce attorney who has worked on cases similar to yours in the past. They can help you with all aspects of the divorce including gathering evidence, keeping it organized, disclosure, and the presentation of the evidence in the court. They can also provide you with information about experts that could be witnesses in the case.