One of the most important aspects of a divorce proceeding is division of marital property. Of course, in order to do so, parties must be apprised of what assets comprise the marital estate. 16.2(e)(1) of the Colorado Rules of Civil Procedure begins: Parties to domestic relations cases owe each other and the court a duty of full and honest disclosure of all facts that materially affect their rights and interests and those of the children involved in the case? However, high emotions and innate human greed can lead to less than honest disclosures.
Since Rule 16.2 is based on self disclosure, the question always arises, how will I know if my spouse is not disclosing his assets? To protect yourself from a dishonest spouse, reliance solely on the requirement of 16.2 is ill-advised. Other measures may be necessary.
First, before initiating a divorce proceeding, it may be useful to determine whether or not you have access to information related to your spouses assets in your possession. Making copies of these documents in preparation for divorce may be a prudent step prior to filing an action. Obtaining these documents prior to the battle over them is a proactive step to win the battle before it begins. You should consider keeping copies of these documents outside the marital residence once you have made copies.
Aside from self-disclosure, Rule 16.2 provides other tools for finding information. For example, interrogatories, or written questions submitted to the opposing party which must be answered under oath, and requests for protection of documents that may disclose assets, may be submitted to the opposing party. Answers and documents are required, or sanctions may be imposed. Of course, this still requires some faith in the opposing party to be honest.
Another tool, which does not rely on the opposing party's honesty, is the subpoena. An attorney has the power to serve a subpoena on the opposing party's employer, requiring them to produce employment or other relevant records. A subpoena can also be served on the keepers of any other relevant accounts and records, such as those related to retirement. An attorney may also conduct a deposition compelling under oath testimony of either the opposing party, or anyone else with personal knowledge of accounts or assets.
Hiring a forensic accountant or private investigator trained to trace assets may be necessary, particularly when the marital estate is large or complex. However, when dealing with small marital estates, the cost of such experts may quickly outstrip the value of the assets, and render such an investigation pointless.
A final line of defense is a provision in a Separation Agreement explicitly stating that each party represents that he or she has made a full disclosure of all property in which either has an interest, that each party should acknowledge that the other party has relied upon this disclosure in reaching the agreement, and that the discovery of assets not disclosed shall constitute grounds for reopening and redistributing marital assets accordingly.