Is my husband is hiding information in our Virginia divorce?

If you read my blog article on Monday, you know that discovery is the process through which you and your attorney learn what assets and liabilities exist in your marriage. It’s a long, drawn-out process, where you’ll have to really take a serious look at your whole portfolio, from the properties you own to your sources of income, retirement accounts, investments, custody arrangements, personal property, and more. It’s also a critically necessary process, because there’s really no other way that it would be possible to figure out all the things that went into your marriage and, ultimately, divide them between you and your soon-to-be ex. We can’t just take his word for it, and we can’t just gather some documents and piece together the holes ourselves. It’s really something that you’ll have to work at and take the time to make sure that you’ve gathered all the information we’ll need. Is it fun? No, not really. But I also can’t think of any more important part of your divorce.

Why do I have to provide so much information?

If you’ve gotten discovery, you probably know that it looks pretty overwhelming. Your husband’s attorney will ask you for information about so many things, you’ll probably have a hard time deciding where to start. You’re probably wondering, “is this really necessary?”

Well, for starters, all of it doesn’t apply to you. Your husband’s attorney is trying to be as inclusive as possible, so that you can’t say, “Oh, well, I didn’t provide information about that multimillion dollar asset because I was never asked about my overseas investments.” The attorney wants to leave no stone unturned, so that you’re asked about absolutely everything. A lot pieces of the question won’t apply to you at all, so you don’t have to worry about those.

What if I don’t have the information he asks for?

You only technically have to provide the information that is within your possession or control. You may have to call companies to get copies of certain records if you don’t have them on hand, but you’re not expected to magically have everything on your own. For some things, his attorney may have to send a subpoena to another company or institution to get copies of the records. To be sure, ask your attorney if you have a question about what you can provide. (And, obviously, if your husband has certain documents in his possession, you can’t provide them.)

Why can’t he get it himself?

It’s frustrating, right? You’re married, and he has as much access to the mortgage statements as you, if he wants them so badly, why can’t HE call up the company and get them? Well, as irritating as it is, it’s important that you both cooperate when it comes to getting together the information in discovery. Like it or not, you’ll have to get access to documents he probably could get himself. He probably won’t be as diligent as you are in providing the information, either.

But there are consequences if you don’t provide information. In some cases, not providing information means that you won’t be able to provide any additional information later on, and that could hurt your case. In other situations, you may find that you have to pay him attorney’s fees if you don’t provide the information to him.

You can drag your feet when it comes to discovery, but ultimately you’re driving up costs and hurting your case.

What if he lies in his discovery, or tries to hide something?

This is a really common question. Obviously, you and your soon-to-be ex aren’t on the best of terms right now, or you wouldn’t be getting a divorce. Trust between the two of you is probably at an all time low, and you believe he’s capable of anything—including lying to you or hiding money just to keep you from getting it.

Most women are convinced that their husbands aren’t being entirely forthcoming about their expenses and their available income. At some point, almost every client asks me what happens if he’s lying or hiding assets. In most cases, just going through discovery is enough to find out what he's hidden, if he has hidden anything at all. Discovery is long and complicated for a reason, and the main reason is because we want to make sure we leave no stone unturned and we find everything we can to which you are entitled.

If, after discovery, you're still concerned that your husband is hiding assets, we can look a little further. In most cases, he's not. If he was (and we couldn't find it in regular discovery), we would have a hard time finding later, especially if he set up some kind of offshore account. We would spend a lot of money trying to find the account, and if we don’t already have some kind of idea of where the money is hidden, we may never find it at all. If you're still concerned, you should talk to your attorney about looking for these hidden assets further.

If your attorney is smart, though, she will have added protection into your separation agreement to help you in the event that you find out, after you’ve signed your agreement, that there was some asset that you didn’t know about at the time. We call these “after discovered property” provisions, and they describe exactly how property will be divided if it’s found later on. We can say that it could be divided 50/50, or if we find out that he was deliberately trying to hide the property, that it’ll be divided 80/20. In a separation agreement, you have a lot of freedom to craft your provisions so that they suit your needs. Provisions like this encourage honesty (because he doesn’t want to risk having to give up 80% of some important asset), and make both parties feel safer signing, because they aren’t giving up rights to something they don’t’ even know exists.

The best advice I can give you is to cooperate with discovery and be as honest as possible. It’s not fun, but the information gained during this process is invaluable, and will help your attorney help you craft the best solution possible for your future.

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