- Each spouse must complete and file a family law financial affidavit. The financial affidavit asks for all your income, long-term liabilities and monthly bills. It also asks for assets. Contingent assets and liabilities are also included in the financial affidavit. Contingent assets are assets that you are owed that are not in your possession (for example, a settlement for a lawsuit). Both spouses have the right to see the other's family financial affidavit.
- Most states now use the equitable distribution theory rather than assigning each spouse exactly half of the assets and liabilities in a divorce. In equitable distribution, the court looks at the individual, non-marital estate of each party, the income earned by each party, the future earnings of each party and, in states that do not have no-fault divorce, the fault committed. If the wife cheats on a husband, the husband may, on the court's discretion, be awarded extra assets.
- There are two types of discovery requested in a divorce case: marital assets and liabilities and non-marital assets and liabilities. Depending on the law in your state, non-marital assets and liabilities may stay with the spouse who claims them or may be equitably divided between the spouses. The biggest factor that the court looks at is whether funds bettering the asset or paying off a liability are co-mingled.
- When going through the discovery process, you must keep in mind that each spouse has the right to see what the other spouse owns. A marriage is a joint venture and the court looks at this partnership as a 50-50 venture. If one spouse stays home to raise the children and keep house, that spouse is still contributing 50 percent of the household, as child care is not paid for (to a third party), which means more money stays in the household. Each spouse has the right to equitable distribution, for without the spouse who stays home, neither spouse would have as much savings and assets.
- All assets and liabilities must be provided to your spouse. Even if you think the asset or liability is non-marital, it must be provided. A retirement account that you think might not be marital may be considered as marital, depending on whether marital funds were used to increase the account. Interest earned during the marriage may, under certain circumstances, also be considered marital funds. Your spouse has the right to review bank statements, credit card statements, titles to assets (home and vehicles), liabilities, retirement accounts, stock accounts and any other asset or liability.
