The term “disclosure” refers to a litigant’s obligation to exchange certain documents and information with the other parties during the litigation. For family court cases, Rule 49 is the specific rule under the Arizona Rules of Family Law Procedure ("ARFLP") that defines the minimum disclosure obligations required in each type of family law case. The purpose of mandatory disclosure is to make sure that each party to a family law case has access to information and/or evidence that may be relevant or important to the contested issues.
While other rules certainly are important, Rule 49 probably has the broadest impact of all of the rules. Understanding disclosure requirements are an early step to every successful litigation.
What Rule 49 requires
What exactly each party is required to disclose depends on the type of case or, more specifically, the specific issues involved in each case. Subsections (d) through (h) enumerate the specific disclosure requirements for:
Legal decision-making or parenting time
In cases involving legal decision-making or parenting time, parties are required to disclose:
- documentation of all protective orders involving the party or anyone who lives in the party's home
- contact information for all treatment providers who have treated the party or their children for any mental health, substance abuse, or domestic violence related issues within 5 years before the petition was filed
- documentation of all criminal charges against the party or anyone who lives in the party's home within 10 years before the petition was filed
- documentation from any Department of Child Safety investigation involving the party or anyone who lives in the party's home within 10 years before the petition was filed
- all documents and information relevant to the best interest factors provided by A.R.S. § 25-403(a)
As you can see, some of these disclosure requirements are intrusive and/or burdensome. Parents are often surprised that they are required to provide their treatment providers. Opposing parties or, more specifically, their lawyers often will expand this and ask you to provide medical records or sign a HIPAA release. You should not do this without consulting with an experienced child custody lawyer.
These records are privileged under Arizona law and most of the time you have no obligation to provide medical records or access to your medical records directly to the other party or their lawyer. However, if your records are relevant to the issues in the case, you could be required to provide them to the judge for their private review. The judge then could order the release of specific records they believe are important to the case. This procedure preserves your doctor-patient privilege and protects any sensitive information unrelated to the case.
Child support
If child support is at issue in your case (and it must be recalculated whenever parenting time is changed), each party will be required to disclose:
- an Affidavit of Financial Information
- proof of income from all sources (including complete tax returns from the past 3 years and a lot more)
- proof of any child support and/or spousal maintenance being paid by the party in any other case
- proof of all health insurance premiums the party pays for any child listed in the petition
- proof of any child care expenses the party pays for any child listed in the petition
- proof of any education expenses the party pays for any child listed in the petition (e.g. private school tuition or other special schools)
- proof of any expenses the party pays for the special needs of a gifted child or a child with a disability who is listed in the petition
The child support disclosures can be really overwhelming, especially in high net worth cases, because the documents can be voluminous. Tax returns alone can be hundreds of pages.
Spousal maintenance and [or] attorney fees and costs
Rule 49(f) is written with an "and" but it applies if either spousal maintenance or attorney's fees are requested. In these cases, the parties will be required to disclose:
- an Affidavit of Financial Information
- proof of income from all sources
- all documentation and information relevant to the spousal maintenance factors provided by A.R.S. § 25-319
If your case involves child support, spousal maintenance, or a request for attorney's fees, you should carefully review Rule 49(e)(2) to understand the scope of "income from all sources." Income for child support or spousal maintenance purposes can be much more encompassing than taxable income.
Property division
In divorce, legal separation, and annulment cases where the parties have not reached complete agreements regarding property division, each party must disclose:
- all deeds, deeds of trust, and other documents related to the ownership and value of any real property owned by either party
- statements from all bank or other financial accounts (pension, stock/investment, retirement accounts, etc) for a period of 6 months before the petition was filed through the date of disclosure
- statements and documentation related to any life insurance policies for a period of 6 months before the petition was filed through the date of disclosure
- all documents relevant to the value of any real or personal property for a period of 6 months before the petition was filed through the date of disclosure
- business tax returns, profit-loss statements, and any other documents relevant to the value of a business interest for a period of 5 years before the petition was filed through the date of disclosure
- all documents related to any trust in which the party has a beneficial interest
- a list of all personal property and an estimate of each item's fair market value
A lot of disclosure conflicts originate here. Parties can be reluctant to disclose trust documentation or financial account statements. They may try to conceal accounts and assets, including business interests. They may selectively produce information to support diminished valuations. It can be really messy, but hiring an experienced divorce lawyer can help tremendously. We have extensive experience with asset tracing, including forensic accounting. We can also assist with any other disclosure disputes.
Debts
Just like for property division, in any divorce, legal separation, or annulment where the parties have not reached complete agreements regarding debt division, each party will be required to disclose:
- statements from mortgages, notes, liens, and any other encumbrance against property for a period beginning 11 months before the petition was filed through the date of disclosure
- statements from all credit card or other debt accounts for a period beginning 11 months before the petition was filed through the date of disclosure
Remember, Rule 49 provides the minimum disclosure requirements. It is common for parties or their lawyers to request information beyond what this rule requires. This is especially true if there are any concerns about community waste—referring to excessive spending or disposing of community property. In these cases, divorce lawyers may request several years of financial statements.
Witnesses
Each party must disclose the name and contact information for any witness they expect to testify at trial and provide a statement summarizing their expected testimony. If the witness is not property disclosed, the family court may not allow the witness to testify.
Expert witnesses
For expert witnesses, each party must disclose the name, contact information, expert's qualifications (or CV), and a summary of their anticipated testimony.
If you expect your case will involve expert witnesses, you really should hire an experienced divorce lawyer. Expert testimony makes the case more technical and complex, increasing the importance of procedural compliance. Even minor procedural mistakes could impact the outcome of your case.
Exhibits
Each party must disclose their evidence that they intend to use at any trial, including impeachment evidence.
This can be surprising to people who have seen surprise impeachment to catch a witness or party in a lie portrayed throughout various television and other media. All of your evidence must be properly disclosed. Failure to follow these rules can cause the judge to exclude your evidence. This obviously can have a big impact on the outcome of your case.
When are disclosures due?
Disclosure is an ongoing obligation, this means you must supplement throughout the litigation as new information becomes available. Your initial disclosures technically are due no later than 40 days after a response is filed in your case. In some cases, the court may set a different deadline, especially in cases where a response is not required (e.g. most post-decree petitions like modifications and enforcements). Always review minute entries very carefully because your judge may set a different disclosure deadline.
How Rule 49 can impact your case
Rule 49 is more than just a checklist, it is a strategic tool that can significantly impact the outcome of your litigation.
Disclosure can:
Define the financial issues
Property division, child support, and spousal maintenance all depend on complete and accurate disclosure. If the disclosures are incomplete or misleading, the outcomes may be unfair and unfavorable. These issues can be interrelated so even partially incomplete disclosures can have a ripple effect through all of the financial issues in a case.
Impact credibility
Credibility matters, especially when there are any contested issues litigated without conclusive evidence. Judges evaluate each party's credibility and it can sometimes determine specific rulings. Even perceived lack of transparency can damage your case.
Create leverage in negotiations
If the other party does not want to fully comply with disclosure requirements, this can be used to create leverage in settlement negotiations. You may agree to waive your right to complete disclosure in exchange for something you want from the litigation. This pressure can be increased if you are required to compel disclosures because the court can impose financial sanctions against the non-disclosing party or limit the arguments or evidence they can present at trial.
Complete disclosure is especially important in high net worth cases. These cases typically involve significant property, complex financial holdings, and a lot more exposure if one party is ordered to pay the other's attorney's fees. In these cases, disclosure is not merely compliance with a rule—it is effective trial strategy.
What happens if a party violates Rule 49?
A party's failure to comply with disclosure obligations can have serious consequences. They can be ordered to pay the other party's attorney's fees and any costs incurred to obtain the information required under Rule 49 (subpoenas, even depositions which are really expensive). The court can exclude evidence or testimony; or even proceed by default on particular issues. In extreme cases, the violating party's petition can be dismissed altogether.
Incomplete or partial disclosure, even when inadvertent, can give the judge a negative impression of you. You do not want this. It also can cause you to incur a lot of additional attorney's fees if you are represented. If your lawyer is good, they will regularly hassle you about incomplete disclosure because doing so is the best way to protect you from sanctions, motions to compel, etc.
Similarly, waiting too long to start gathering disclosures can put you in a bad spot. Some cases, usually divorce or legal separation, may involve all of the contested issues listed under Rule 49. Litigants in those cases must exchange all of the documents and information required under each subsection. This can be voluminous, so it is a good idea to prioritize Rule 49 once a family case is filed. If you wait too long, you may have to ask the other party or their lawyer for an extension and it can be used against you throughout the case to create a perception of unreasonableness (for which the other party could seek reimbursement of their attorney's fees) or attack your credibility.
Trust us when we say that most family lawyers love to embellish and enlarge disclosure and discovery disputes.
Do you need a lawyer for disclosure
No, Rule 49 is publicly available and family court is designed to enable you to represent yourself without a lawyer. But doing so invokes risk. Arizona law holds self-represented litigants to the exact same standard as experienced family lawyers. This means that you cannot claim inexperience or misunderstanding of the Arizona Rules of Family Law Procedure, the Arizona Revised Statutes, or the applicable case law as a defense to procedural or substantive mistakes.
Not following Rule 49 or any other rule can irreparably affect your case and expose you to harsh sanctions.
So even if you intend to represent yourself, it can be beneficial to consider hiring a family lawyer in a limited scope capacity to consult with you as needed to ensure complete compliance with the rules.
Hiring an experienced family lawyer to represent you can do even more than ensure you comply with Rule 49—we can:
- identify inconsistencies in the opposing party's case
- locate undisclosed or concealed assets
- build a record to support favorable rulings
- apply pressure to move the case in the direction you want
- shape settlement negotiations in your favor
Conclusion
Given what is at stake in family court, you should not take any risks. We can help you navigate family court and use Rule 49 and the other rules of procedure as tools to advance your interests and obtain favorable outcomes for you. Contact us to schedule a free initial consultation to discuss how we can help you.
