August 2004

August 2004 Newsletter

Zoe Meigs, Attorney at Law, (817) 336-2325

This month: A Primer on Discovery in Divorce and Splitting the Retirement

A NOTE FROM ZOE

I apologize for the long lapse between newsletters. This is actually one of my favorite tasks of my practice. If you have looked at much of my website, including the past newsletters, you know that I reveal a bit more about my personal life than the average lawyer. I think all my experiences are relevant to my practice including the fact that I have been married, a stay-home mom for a time, divorced, and a single parent.

This year I have entered a new phase with some trepidation. I got married. You may wonder how someone who works day in and day out with divorce and dying relationships could even consider marrying again. The answer is simple: I believe in the institution of marriage. Most importantly, I fell in love.

It is hard for most of my clients to imagine that they will ever fall in love again or want to get married. That is actually a reasonable conclusion to draw while going through the pain and grief of divorce. But there comes a time when they will want to start again. I wish them and you all the best.

A PRIMER ON DISCOVERY IN DIVORCE

Discovery is the process by which your spouse tries to learn everything he or she can about the property you own together and separately, and what skeletons you may be hiding in your closet. The Texas Rules of Civil Procedure provide the rules for the discovery process.

It is not used in every divorce. Couples going through uncontested divorces do not use discovery. A spouse in an uncontested divorce already knows all he or she needs to know about the property and is willing to agree to a division of the assets and debts without reviewing more information.

Discovery is for the most part time-consuming and expensive. A spouse will most likely spend hours of time collecting and organizing documents to respond to a Request for Production from the other spouse. The response must be made in 30 days. Many attorney and attorney staff hours are consumed in answering discovery requests. That means that a spouse who has been served with discovery will be paying more in legal fees than if discovery had not been done.

It is not necessarily a two-way street. For example, a husband may send discovery requests to the wife, and the wife may choose not to send discovery requests to the husband. The purpose is not to harass the spouse, but to gather information needed for decision-making purposes and for having proof to support the property and debt division you propose in a mediation or court setting. Discovery requests are used in custody cases as well, but to a lesser extent.

The basic and least expensive discovery tool is an Inventory and Appraisement form. This gets used in many divorces. It is usually done in the form published in the Family Law Practice Manual. It asks questions about all of the assets and debts of a couple. Each spouse fills out his or her own Inventory and Appraisement. The I & A form is then signed by the spouse and filed in the court’s file.

Additional common forms of discovery include the Request for Production of Documents, which may ask a spouse to produce (that is, supply the documents to the other spouse) tangible documents such as bank statements, tax returns, email, letters, diaries, calendars, credit card statements, pay stubs and employment benefits booklets, to name a few.

Interrogatories may be sent to the spouse to ask the spouse questions relevant to the case. They may be as garden variety as “List your sources of income for the past five years,” to as invasive as “Name each person other than your spouse with whom you have had sexual relations during your marriage, including the full name and the date of each sexual experience.” Interrogatories are limited to 25 total in most cases.

The Request for Disclosure is brief and simple to answer. It asks for basic information and for a list of persons with knowledge of relevant facts. That means the other side wants to know who your witnesses may be.

Depositions are usually very expensive, and are, therefore, used in very few cases. Depositions allow the attorney to depose (interview, interrogate, antagonize, humiliate) the other spouse, witnesses, lovers, doctors involved with the case and anyone else who might have relevant information.

Ask your attorney if doing discovery would make sense in your case. Remember that the deadlines for serving it and responding to it are important. For more information see the Texas Rules of Civil Procedure Rules 190 to 215.

SPLITTING THE RETIREMENT ACCOUNTS

Let’s say that your wife works for a local aerospace manufacturer and has pension there. In your divorce you are to receive half of the pension. So how do you obtain it? You need a Qualified Domestic Relations Order or QDRO for short (pronounced “Quadro”). Without a QDRO you won’t be getting any of her retirement. The need for a QDRO arises in many divorces in which there are qualified retirement plans to split. In the example, the wife just can’t walk in to the employer or whoever is administering the pension and tell them to split it. The administrator of the plan wants a QDRO.

If a retirement plan requiring a QDRO to split is involved in the divorce, the divorce provision in the division of assets section of the decree will provide for the percentage or dollar amount that each spouse is getting and will refer to a QDRO to be signed by the Court on or after the date of the divorce.

The general practice is that the lawyer for the person who will benefit from the split (the one who is not the employee who has the retirement account in question) will draft the QDRO. It must be in the form that the employer or the employer’s administrator requires, so the lawyer often requests a sample QDRO from the administrator.

The client should ask to review the QDRO and for the attorney to explain it to him or her. The client should also make sure to get a conformed and certified copy of the QDRO for his or her own file after the Court has signed the QDRO, and to get a copy of the letter to the lawyer that shows that the employer has approved the QDRO. With retirement income at stake, one cannot afford to let any step remain undone.