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On your marks.  Get set.  Litigate!

The Utah Rules of Civil Procedure have recently changed requiring parties to be much more prepared and ready for litigation. Under the old discovery rules the parties were able to confer and decide on a discovery schedule. This would often take months allowing attorneys unwilling to push cases forward could slow litigation down to a complete standstill.

Effective for all cases filed after November 1, 2011 the parties must now comply with a much shorter and more demanding schedule for discovery. This speeds up all cases including divorce proceedings. This sounds like a great idea, and hopefully will help parties get to final divorce much sooner and for less money. However, the result of the new rules is that a party must be ready with certain documentation, within a month of a lawsuit being filed (and that time flies by faster than you think).

Under Utah Rule of Civil Procedure 26.01, both parties must prepare and file a financial declaration showing the amount of monthly income and expenses in order for the judge to make rulings on important issues including child support, alimony, property division, and division of debts and assets.

To complete this financial declaration, both parties must provide the following:

(1) Complete tax returns for the past 2 years, including supporting documentation (W-2s, tax schedules, etc.)

(2) Pay stubs and evidence of earned and unearned income for the past 12 months before the petition was filed.

(3) All loan applications and financial statements prepared or used by the party within the 12 months before the petition was filed.

(4) Documents verifying the value of all real estate in which the party has an interest, including, but not limited to, the most recent appraisal, tax valuation and refinance documents.

(5) All statements for the 3 months before the petition was filed for all financial accounts, including, but not limited to checking, savings, money market funds, certificates of deposit, brokerage, investment, retirement, regardless of whether the account has been closed including those held in that party’s name, jointly with another person or entity, or as a trustee or guardian, or in someone else’s name on that party’s behalf.

I know what you are thinking, “ I’ll just provide some of this stuff, the court doesn’t really care nor will it notice if I don’t produce everything.”  You couldn’t be more wrong. If a party fails to provide the documentation required, the court may subject the non-disclosing party to sanctions under Rule 37 including (but not limited to) an award of non-disclosed assets to the other party, attorney’s fees or other sanctions deemed appropriate by the court.

I know, I know; ‘seems unfair, right? So you are probably thinking you have months to get this out, since divorces take forever. Once again, you would be wrong. Under the new rules the party filing for divorce, or the “petitioner” must file this financial declaration with all the documents requested within 14 days after their spouse or the “respondent” answers the complaint for divorce. The respondent must file his/her complete financial declaration with accompanying paperwork within 28 days of the Petitioner’s filed declaration, or 28 days from their answering the complaint, whichever is later.

So how does this affect you? If you follow the rule and are ready to go before filing for divorce it can only help you. It will help you find out what assets and debts the parties both have, and do so in a quick and accurate manner. If you are not ready and prefer to procrastinate, this will only increase your risks of harm to you and your case. Failing to provide the documentation will start the divorce action out on the wrong foot.

Collecting all of the documents needed for the financial declaration can be stressful under the best of circumstances. Add the stress and emotional rollercoaster of a divorce and it can be downright overwhelming.

My advice? Collect ALL the documentation needed before you file for divorce. Do not wait and assume you will have more time later. Do not wait for your spouse to provide the information for you to copy. Collect every document on the list before you retain your attorney. It will save you money in attorney’s fees, and save your butt in court.

 

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