Discovery During Divorce: How it Works and What to Expect
Courtroom drama gets all the attention, but the most frustrating and confusing aspects of divorce often occur outside of court. Even an amicable divorce settled through mediation requires a great deal of paperwork and document retrieval. Often, these complications center around the discovery process, when both parties seek extensive information to be presented as evidence.
Because discovery occupies so much of family lawyers’ attention during the earliest stages of the divorce process, it’s important for clients to know what, exactly, these procedures are and why they’re so important.
To that end, we’ve compiled a guide to all things divorce discovery. Keep reading to gain a better understanding of the discovery process — and the strategies needed to make discovery procedures as stress-free as possible.
What Is Discovery?
Discovery is a crucial part of the legal process. In civil cases, this procedure allows both sides to obtain crucial evidence. This, in turn, can be used to argue either side’s case and may be presented during the eventual trial.
In the US, discovery is a comprehensive process that gives plaintiffs and defendants the broad ability to obtain any supporting materials that could potentially lead to admissible evidence.
As the American Bar Association points out, the overarching goal of discovery is to avoid a phenomenon known as “trial by ambush,” in which one side is clueless about the other parties’ evidence until the trial, when it’s impossible to obtain answering evidence.
How Does Discovery Play Into Divorce?
While it’s common knowledge that discovery plays an essential role in the personal injury process, divorcing spouses are often surprised by the influence these procedures have as they deal with concerns such as property division and child custody.
While spouses may enter the divorce process assuming that they know everything about one another’s situation, this isn’t always the case — and what’s more, their lawyers need to be brought up to speed. Discovery provides one of the most effective means of accomplishing this.
The goal is to eliminate any gaps in understanding so that the ultimate settlement truly reflects the reality of the situation. If spouses desire as fair and equitable of a resolution as possible, a thorough discovery process provides the best chance of ensuring this.
The Main Types of Divorce Discovery
While divorce discovery procedures can take many forms, the following categories are among the most common:
Requests for Admission
Featuring carefully worded inquiries, requests for admission encourage the other side to admit or deny facts related to the case. These must be responded to under oath and penalty of perjury. These requests typically have strict deadlines, so time is of the essence.
Topics explored in requests for admission can vary dramatically. Often, these delve into financial concerns, such as income, assets, current expenses, or spending history. They may also explore childcare concerns or spousal conduct while married. While not always used during divorce, these requests may be relied on to highlight aspects of the case that are not in dispute.
Requests for Production
If specific documents are relevant to the case, it may be possible to request that the other party provide access to these. Sometimes referred to as “requests for production of documents,” these inquiries are among the most commonly made requests during the discovery process.
Examples of materials requested during discovery include:
- Photos and videos
- Emails or texts
- Medical records
- Bank statements
- Pay stubs
- Records of insurance payouts
Interrogatories are written questions, drafted and sent by the other party. The answering person must provide honest and accurate responses under oath.
Any information that is deemed relevant to the divorce could be fair game during the interrogatory process. That being said, divorce interrogatories are frequently limited to general questions. For example, interrogatories may offer basic details on the defendant’s background. This might encompass the answering party’s education, work history, or property.
During divorce interrogatories, it’s essential to answer questions honestly, but also succinctly. Misleading or vague answers could cause problems later on, but there’s no need to disclose information that’s not relevant to the interrogatory questions. The answering party’s attorney can review both the interrogatory questions and responses.
In some cases, the answering person may be unwilling or unable to respond to certain questions. Depending on why these questions are problematic, it may be possible to object to a portion of the interrogatory. Often, problems arise because questions are too vague or are simply not relevant to the divorce.
Meant to provide insight into how witnesses might behave in court, depositions involve a series of questions about the spouses, their finances, and their lives in general. As these questions are answered, some form of a transcript must be created. While this takes place outside of court, a court reporter is involved. In divorce, written depositions are common, although these can also be videotaped.
In divorce, depositions generally involve the separating spouses. However, depositions are also sometimes required for other witnesses. These third-party witnesses can sometimes provide insight that would not be available if depositions focused on the divorcing spouses alone. For example: in a child custody battle, nannies, babysitters, or other caretakers may shed light on the parents’ involvement in the lives of their children.
A wide range of questions can be asked during depositions. These range from general queries to requests for specific details about finances, child care, and more. The following are a few examples of potential divorce deposition questions:
- What will your living arrangements look like after the divorce?
- What types of recreational pursuits are your children involved in? To what extent are you, as a parent, involved with these?
- Describe an ‘ordinary’ day in the life of each child.
- Have you ever been arrested or convicted of a crime? What were the penalties for that crime?
- Have you ever neglected to inform your partner of work bonuses or raises?
As with interrogatories, all answers should be honest and concise. Preparation is essential. This might mean pondering potential questions and answers prior to the deposition. It’s often possible to anticipate the types of questions that will be asked based on previous interrogatory questions or requests for production.
Is Anything Out of Reach During Discovery?
While both parties may receive extensive access to information during the discovery process, not just anything is available. Attorney-client interactions, for example, are privileged and need not be disclosed during discovery. Certain psychiatric records may also be out of reach.
Also, as previously discussed, only information deemed relevant to the divorce should be requested or disclosed during interrogatories or depositions. If these requests are thought to be irrelevant, objections are possible.
How Long Does the Discovery Process Last?
After the initial filing, discovery typically begins almost immediately. Early on, exchanges of information are primarily limited to interrogatories and requests for admission or production. Often referred to as “written discovery,” these documents are typically responded to within one month and will often hold strict deadlines.
Once written forms of discovery have been exchanged, lawyers can move forward with scheduling depositions. These typically only take an hour or two, although depositions for the most contentious divorces have been known to last a lot longer. Depending on the scope of discovery and how frequently objections are made, this process can be swift or may be drawn out for several months.
What Happens If Discovery Requests Are Ignored or Contested?
It’s nearly always in both parties’ best interests to comply with discovery requests. The consequences of ignoring or evading these requests can be severe. Often, refusals result in motions to compel. If successful, courts can use these motions to force reluctant parties to furnish requested information.
If motions to compel also fail to deliver the desired response, the uncooperative party may be held in contempt. A variety of sanctions can be assessed in the absence of compliance, such as monetary fines, evidentiary sanctions, and, in severe cases, jail time.
The Need for Strong Representation During Discovery
Discovery can be a stressful process, but a skilled and empathetic attorney can make a world of difference. With proper support and a proactive approach, discovery can feel like less of an ordeal and more of an opportunity to gain valuable insight. Ultimately, this process should pave the path to a fair and equitable outcome.