EXCHANGING DISCOVERY IN YOUR DIVORCE CASE

Discovery

Divorce proceedings are inherently personal. This means that virtually all aspects of the spouses’ lives will need to be explored and accounted for in reaching a fair result. This process of gathering information is known as discovery, and it begins as soon as the client contacts the attorney regarding the divorce.  Discovery involves the parties exchanging requested information. Formal discovery will be drafted by your attorney and sent to the opposing party with a 30-day time limit for producing the information requested.

Information Obtained by Attorney

A good attorney will start to collect pertinent information from the client right away. The information requested may seem exceptionally personal, yet it is essential to provide detailed accounts for each subject. Lawyers will need to know basic information about all parties involved, including any children. This basic information may include names, addresses, birthdays, and social security numbers. To achieve a fair allocation of property and assets, the party will also need to provide information on salary, debts, and assets. This information may include, but is not limited to, stocks, real estate, investments, and retirement packages.

A standard method to receive this information is through a questionnaire. Nonetheless, documentation of the information provided will be necessary. Documentation of pay stubs, mortgage statements, and bills will be fundamental to building a complete picture of what must be presented to the court for division. The attorney will also gather credit reports of both spouses. If the spouses own a home or other real property, an appraisal will be required. This is especially true if the parties disagree on the home's value.

Information can also come from social media. Courts are still deciding exactly how to incorporate social media into evidence law. However, even if it cannot be used in a trial, social media can still show how a particular party thinks. Posts and pictures can help uncover some essential components. A skilled attorney will caution about clients’ social media activity.

Experienced divorce counsel will waste no time in beginning to gather information from his or her client.  This means that income, debts, and assets (such as stocks, real estate, investments, retirement packages, etc.) will also need to be disclosed in full. This information is vital to achieving a fair distribution and a favorable result. Documentation of all the information requested in the questionnaire will also be necessary. Gathering pay stubs, mortgage statements, and bills will be essential to developing the complete picture of what must be accounted for in the court’s division. 

Formal Discovery

Once a divorce has been filed, attorneys are allowed different discovery methods to compel the other spouse to give information/documentation that can be helpful in litigation. These methods are available to both parties equally. As mentioned earlier, discovery begins as soon as contact with the attorney is made, before the petition is actually filed. However, the court will set a specific date by which all formal discoveries must be finished. The court gives each side ample time to complete discovery, and the date is typically set near the trial.

Attorneys are empowered with discovery tools once a divorce proceeding has been filed in court. These tools are used to compel the other spouse and third parties to provide information and documents for use in litigation. 

Written Discovery

The two most common and practical methods of discovery include requests for production and interrogatories. A request for production requires the other party to produce specific documents, such as pay stubs, property records, or bank statements. These requests are sent to the other party and can be very broad in scope. This means that, as long as the requested documents are in some way related to the divorce or may lead to admissible information, the opposing party must provide them. Because this is so broad, documents such as credit card statements and text messages are fair game as well. However, a spouse can object to the request. Typically, parties object because it is too broad or irrelevant. If the parties cannot agree, the court will decide whether certain documents have to be turned over to the opposing party. It is important to note that a court may punish a party for failing to turn over information during discovery.

Interrogatories are written inquiries that the spouse must answer. The appropriate responses are presented in writing and must be true. These inquiries can cover a similarly wide range of subjects, as do requests for production. This implies that the questions can be personal. More limits are placed on this method of discovery by restricting the number of interrogatories each side may issue. If a party needs additional interrogatories, they must obtain the court's permission before sending them to the opposing party. 

The answers to interrogatories are submitted in writing and must be sworn to be accurate. These questions can cover an equally wide range of subjects as requests for production. This means that they can get quite personal and pointed, especially when the grounds for divorce are fault-based. Interrogatories are also subject to the same procedure concerning compelling production.

Though many discovery tools exist, two are by far the most used and powerful: requests for production and interrogatories. Request for production seeks documents that the other party has. These will include pay stubs, bank statements, and property records. The requests will be sent to the opposing party, requesting documents related to a specific aspect of the case. The whole world is not a level playing field, but the scope of these requests is very broad. So long as the request concerns matters related to the divorce or may lead to the discovery of admissible evidence, the party must respond. This means everything from credit card statements to personal text messages may need to be turned over. 

Depositions

Along with their written counterparts, depositions make up the third and final of the big three formal discovery tools. A deposition is best thought of as trial testimony outside the courtroom. The witness will be sworn in, just as witnesses are in open court. The opposing attorney will then ask the witness questions that must be answered. Throughout the process, a court reporter will take down the answers and create a record of the deposition. The range of subjects a deposition may cover is very broad, just as with written discovery. Experienced attorneys will use depositions to attempt to rattle witnesses on points they believe are inaccurate or untrue. Again, the personal nature of divorce proceedings can lead to very intense, invasive questioning by attorneys. Testimony given at depositions can be used both to gather information and as evidence at trial.  Depositions are essential when considering discovery methods.