During a divorce, each spouse is typically expected to provide complete and accurate financial statements to facilitate the court’s decision-making processes related to the division of marital property as well as any orders concerning child support and any awards of alimony or separate maintenance. In an ideal scenario, both parties will be forthcoming and deliver the appropriate information in a timely manner, both to each other (or to the other spouse’s lawyer, if either spouse is working with professional legal representation) and to the court. However, spouses sometimes attempt to evade the financial disclosure requirements. In these instances, discovering hidden assets in divorce can become one of the most complex and frustrating aspects of a process that, for many individuals, is already time-consuming, expensive, and emotionally fraught. An experienced South Carolina family law attorney with King Law Offices may be able to offer you legal guidance and support tailored to your unique situation in order to help you regain your peace of mind. Our firm has offices located throughout the state, so give us a call today at 888-748-KING to schedule a consultation to discuss your case.
What Is “Discovery” in a Divorce Case?
The exact stages a case will go through depend to some extent on the type of law involved – criminal cases will be subject to somewhat different expectations from civil cases, and within the civil courts cases involving torts will differ in some ways from cases involving contract law. The South Carolina Family Courts follow a slightly modified version of the South Carolina Rules of Civil Procedure (SCRCP), as described in Rule 2 of the state’s Family Court Rules, and so generally speaking South Carolina divorce cases will go through stages similar to those the parties might expect if they were engaged in a civil lawsuit, with the caveat that a divorce case will typically not involve asking the court to enforce the terms of a contract or to award compensation for damages, and instead of a plaintiff and defendant a divorce case will have a petitioner (who “files for divorce” by petitioning the court to grant a dissolution of marriage) and respondent.
Discovery and Interrogatories
One commonality across many different types of court cases is the stage of legal proceedings known as “discovery.” Typically initiated after the respondent has been served with notice of process in the divorce and has had the opportunity to enter his or her response, the discovery process does not inherently advantage either party – rather, court-ordered discovery is a stage of legal proceedings designed to ensure that both sides have an opportunity to gather key information to use in developing their case. Generally speaking, this information is gathered by submitting “interrogatories” – a series of written questions, which may also take the form of requests for copies of key documents – to the other party. If either spouse is working with a divorce attorney, then the interrogatories will likely go to the spouse’s legal counsel, who will then work with his or her client to collect the requested documents or supply the necessary information.
Motion To Compel Discovery
Both sides are expected to provide timely and appropriately complete answers to reasonable interrogatories during the discovery process. However, one of the important ways that “discovery” during divorce proceedings differs from simply asking one’s former partner to answer questions or hand over documents is that, if either party proves uncooperative, the opposing side has the option to file a “motion to compel discovery” – essentially, asking the judge overseeing the case to order the other party to answer the interrogatories. A South Carolina Family Court judge typically has considerably better leverage for securing cooperation from a recalcitrant spouse than does their soon-to-be ex, and unfortunately in contentious divorces, a court order is sometimes needed to get satisfactory answers to even relatively simple questions.
Discovery and Hidden Assets
Some spouses will be immediately forthcoming about debts and assets. This happy scenario can be especially likely in relatively congenial divorces when the spouses have determined to pursue a divorce not because they have developed a history of bitterness or animosity but because they have come to realize that – despite holding each other in high esteem – they no longer have enough shared goals or interests to offer each other a true partnership. On the other hand, in an especially contentious divorce, even otherwise agreeable and honest people may sometimes find themselves succumbing to the temptation to attempt concealing assets from an ex they believe is trying to get more of the couple’s formerly shared resources than is just.
Equitable Division and Asset Reporting
South Carolina is what is known as an “equitable division” state, according to the South Carolina Bar Association. Also sometimes called “equitable distribution,” the “equitable division” designation means that during divorce proceedings the state’s Family Courts aim to arrive at a division of marital property that will be fair to both sides, not necessarily one that is equal, in each case.
While spouses seeking a legal dissolution of their marriage frequently disagree about what a “fair” division of their shared property and debts should look like, another common point of contention is whether specific assets should be considered “marital” property. South Carolina’s laws, and not judicial whims, determine what Family Court judges must consider in their orders concerning the disposition of property in a divorce – but contentious spouses hoping to keep valuable assets out of consideration will sometimes try to use the notion of separate or “nonmarital” property as their excuse for hiding assets in a divorce, essentially arguing that they saw no need to disclose the assets in question because they were sure the court would not consider them marital property anyway.
Nonmarital Property as Hidden Assets in Divorce
There are a number of flaws with the above strategy, including the fact that South Carolina, like many other equitable division states, instructs its judges to consider what the ultimate resources of each spouse will be in reaching their decisions regarding the disposition of marital property. SCRC § 20-3-620 includes “the nonmarital property of each spouse” as one of the factors judges in SC Family Courts are instructed to consider in determining both the division of marital property; § 20-3-130(C) similarly lists nonmarital property among the factors a court “must consider” in making its decisions regarding awards of alimony or “separate maintenance and support.” In other words, even if a South Carolina Family Court does agree that a specific asset or set of assets should be considered “nonmarital” property, this exclusion only means that the assets in question will not be subject to division during the divorce, not that the value those assets contribute to the spouse’s total resources should not be reported.
How Family Law Attorneys Discover Hidden Assets in Divorce
Unfortunately, there are always going to be a few people who think they can “outsmart” not just the partner they are divorcing, but the South Carolina Family Courts. While there is certainly no legal obligation to work with professional legal representation as you move through the divorce process, in many cases one of the advantages of hiring an attorney can be that, by virtue of training and experience, family law attorneys are frequently in a position to recognize telltale signs that a client’s former partner is attempting to conceal assets, and the attorney can often then take appropriate steps to bring these “hidden” assets to light.
In some situations, missing or obviously incomplete responses to interrogatories may indicate a client’s ex is being less than forthcoming. In this relatively straightforward scenario, the simple “motion to compel discovery,” if granted by the judge presiding over the case, may be sufficient to uncover the assets and resolve the issue. In other situations, however, the spouse may submit seemingly complete responses to the interrogatories sent during the discovery process, and it may only be through close scrutiny of those responses that an attorney comes to suspect that there may be additional assets remaining undisclosed. In this instance, an experienced divorce attorney may recommend a variety of “next steps,” such as filing additional information requests or securing the services of a forensic accountant, to investigate further and make sure the financial record is both accurate and complete.
Get Help Uncovering Hidden Assets in Divorce
Financial disclosures are a normal and necessary part of the divorce process in most cases. While the paperwork may be unpleasant, and many spouses may feel a desire to “hold back,” one of the important practical functions served by court-supervised proceedings for a “dissolution of marriage” is to provide a legal framework for ensuring that each spouse’s accounting is both accurate and complete. If you suspect that your ex may be trying to undermine the integrity of the court’s equitable division of property, consider speaking with an attorney to gain a legal perspective regarding your options. A South Carolina family law attorney with King Law Offices may be able to review the particulars of your case and offer insights tailored to your specific circumstances in light of the state’s laws concerning property division. Call 888-748-KING today to set up your personalized appointment with an experienced divorce lawyer at any of our offices, conveniently located throughout the state, today.