There are several different legal and right ways to get information during your court case. There is also one illegal, wrong way.
First, the wrong way. Even though yo know your soon to be ex’s password(s), do not access their text messages, email messages or Facebook or other social media accounts without speaking to a lawyer first. Such actions are likely to be a violation of federal and state law and as such, could subject you to criminal fines or even imprisonment or civil damages. Further, if the judge rules that evidence was illegally obtained, it will not be considered by the judge no matter how relevant or important the evidence is.
Now, the formal and proper ways to get evidence. There are five such ways.
Ask your soon-to-be ex. If you don’t know the password to a financial account or QuickBooks or Mint, ask. Do so in writing and keep documentation of the ask. At a certain point, the judge may be annoyed and may even impose a consequence for that failure to cooperate.
In St. Louis County, there is a local rule that directs the automatic exchange of certain documents early in the proceeding. The judges are serious about this rule, and they will take action to encourage compliance. Should you need additional documents that you believe may be in the hands of your soon to be ex, you may send them what is called a Request for Production of Documents, which is an individualized list of documents that you are requesting, such as an appraisal of artwork or other valuables. In St. Louis County, again by local court rule, you need to respond to that request when you send it to the other side by either stating that you don’t have the documents requested in a particular part or by producing the responsive documents in your possession.
You may also send Interrogatories to the other side. These are questions to be answered under oath that are sent to the other side. Again, in St. Louis County, the local court rules require that you answer the interrogatories under oath before they are sent to the other side. In virtually every case, we send questions about any expert witness that the other side has. We do this because a number of years ago, I was asked by a colleague to assist in a trial where the valuation of a medical practice was at issue. Because no “expert witness interrogatory had been sent, I ended up cross examining a valuation expert with only the time allotted for a bathroom break to review his file and report. I was able to completely discredit him but I would have preferred more preparation time.
You may also summon the other party to appear for a formal question and answer session where they are sworn to tell the truth and are questioned by the other party’s attorney and the entire proceeding is recorded by a court reporter, a specially trained stenographer, and a formal transcript is prepared. Traditionally, depositions are taken in an office setting with the court reporter, both attorneys and both parties to the case present or in circumstances where the witness is geographically distant, by telephone or a videoconferencing app like FaceTime or Zoom. In these times of pandemic, video or telephonic depositions will likely be the norm.
Finally, a tool that is rarely used but has potential for putting the other party on guard is called a Request for Admissions. This Is a series of yes or no questions that are presented with directions to either admit or deny a statement under oath, with no explanation permitted. The last time that I used this was to get the other side to admit that they had gambled away the money that was set aside to pay the taxes owed by a small business.
Not everyone is honest is responding to questions under oath in their own case but either they tell the truth and you have the information you need or you use subpoenae (the plural of subpoena) or depositions to prove their fraudulent, dishonest conduct and present that to the judge for consideration and most judges will take a dim view of such behavior and impose negative consequences as a result.