If your spouse refuses to provide financial records as required during the divorce process, you may have to file a motion with the court. As discussed in previous posts, you should first send a deficiency letter and then try to subpoena third parties who may have the information you’re seeking. These options are simpler and less expensive than seeking a court order. However, if those options don’t work, you can file a motion to compel production of the documents and, if thereafter needed, a motion for contempt and/or motion to preclude.
Motion to Compel
A motion to compel asks the court to order your spouse to turn over specific information you requested as part of the discovery process. To obtain a court order, your motion must explain what you’re seeking, why your spouse should be ordered to produce the documents and what efforts you made to get your spouse to comply. You must provide evidence that you requested the records in discovery, sent a deficiency letter and subpoenaed third parties for the information, but they failed to provide the documents. Often, a motion to compel is used when records are old and no longer available, such as bank records from more than 7 years ago.
The motion is filed with the court and served on your spouse, who must respond as to why the information has not been provided. Before filing the motion, your attorney should check the individual court rules to learn whether the judge requires a conference prior to filing to try to resolve the matter. If the motion is filed, the court will likely hear oral argument or want a hearing. If the motion is granted, the court will issue an order directing your spouse to produce the records.
Failure to Comply with an Order to Produce Documents
If your spouse doesn’t comply with the court’s order, you can file a motion for contempt. If granted, the judge can require your spouse to pay a fine or go to jail for violating the order. However, this is rarely done absent a pattern of abusive non-compliance that warrants such a response.
You can also file a motion to preclude.
Motion to Preclude
A motion to preclude is often a last resort when your efforts to obtain financial information have been for naught. In it, you ask the court to preclude your spouse from making arguments that relate to the missing financial records because he or she failed to provide that information during discovery. If the motion is granted, your spouse cannot introduce documents or testimony about assets, income or debts that weren’t disclosed. The intent is to encourage your spouse to comply to avoid limits on presenting evidence, and also gives you a remedy against your spouse for ignoring prior requests.
As with a motion to compel, you must show that you made prior attempts to obtain the financial documents through discovery, deficiency letter, subpoena and motion to compel, and your spouse failed to respond. Your spouse can make opposing arguments, and there will be a hearing to decide the matter.
Generally, a motion to preclude will be denied if there are other ways to obtain the information.
If you’re considering divorce, you want a skilled lawyer to advocate for your best interests. Contact us for a consultation to learn how we can protect your rights and achieve a positive outcome in your case.
