WHAT IS THE DISCOVERY OF ASSETS

law-related-object-set-book-gavel-scale-justice-31723205Each attorney must always bear in mind the fact that, regardless of the assets involved, discovery in matrimonial law cases is an absolutely essential tool that which must be fully employed to achieve accurate valuations. Not surprisingly, because of its importance, one learns that discovery was permitted at the common law through the courts of chancery but technicalities regarding bills of discovery necessitated the codification of the right in a majority of the jurisdictions. See Chancery courts permitted bills of discovery in aid of the prosecution or defense of an action at law or a defense in an equity suit. See James, Jr., Discovery, 38 Yale L.J. 746 (1929).

Of course, in recent years each state has adopted its own body of law pertaining to discovery requirements in civil litigation. However, in matrimonial cases many attorneys are not cooperative and resist full disclosure. This has caused various states to have to adopt specific court rules compelling discovery such as the mandatory Preliminary Disclosure Statement, and a net worth requirement. See New York, Part 117 of the Rules of the Chief Administrator of the Courts, effective June 1, 1983. In fact, recent case law has made it clear that matrimonial judges must be given a means of making effective equitable distributions. See Rothman v. Rothman, 65 N.J. 219, 320 A.2d 496 (1974). Therein, the opinion urged that a three-step proceeding be inaugurated to permit the trial court to determine what is marital property, and to make a just and equitable allocation.

Obviously, regardless of a state’s discovery rules, there will be attorneys who resist them. In this situation, the normal method of attack is to make the proper motion, which is to strike the opposing party’s pleadings. See Penthouse Intern., Ltd. v. Playboy Enterprises, Inc., 663 F.2d 371, at 379, 391–392, 32 Fed. R. Serv. 2d 1071 (2d Cir. 1981). See also Buehler v. Whalen, 70 Ill. 2d 51, 67, 15 Ill. Dec. 852, 374 N.E.2d 460, 96 A.L.R.3d 252 (1977), wherein it was held that “Discovery for all parties will not be effective unless trial courts do not countenance violations, and unhesitatingly impose sanctions proportionate to the circumstances.”

 

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