Divorce Discovery: Exchange of Documents and Information
There are several types of discovery. An attorney can use many discovery tools to gather information in a divorce case. Parties involved in a complex divorce should not attempt to collect discovery on their own. Formal discovery can require multiple court hearings and knowledge of family law rules.
At their most basic, divorce proceedings are like any other court proceedings. One party files a complaint, the other files a response, and then both sides exchange paperwork. The exchange of information is called discovery. The discovery process is partially why a divorce case is time-consuming and sometimes expensive.
Types of Discovery Requests
Depending on the nature of the case, an attorney may ask the opposing party for different types of discovery. Not all family law cases need every kind of discovery. A couple who does not have children will not need discovery relating to child custody or child support.
All discovery requests are made under penalty of perjury. The signer returns the documents as true to the best of their knowledge. Being caught lying on discovery can result in sanctions, fines, or citations for contempt of court. If there is a reason you cannot provide the requested information, explain it—don't lie about it.
Some of the types of discovery may include those listed below.
Request for Production of Documents
A request for production of documents, sometimes called a demand for documents, is a formal request for paperwork related to the marriage. Both parties must provide the documents, even if the other side has them. This exchange of information assures both sides that no one is concealing anything.
Requested documents can include:
- Bank statements and canceled checks
- Credit card statements
- Tax returns, even if the parties file joint statements
- Pay stubs
- Life insurance policies and retirement accounts
- Real estate deeds and other property deeds
- Written correspondence between the parties, such as emails and text messages
This part of the discovery process is often contentious in high-stakes divorces. Parties must surrender all financial information to the court so the judge can make an equitable division of separate and personal property. In cases involving custody, the parties must provide documents for the judge to consider. These documents should support their position regarding the children.
Interrogatories are lists of questions. Family law courts have standard form interrogatories used for dissolutions to save family law attorneys and their clients valuable time during the divorce process. Standard interrogatories ask questions about the responding party's finances, employment, residence, and other questions about the marital relationship.
Attorneys use special interrogatories to answer specific questions. A special interrogatory allows the attorney to ask more detailed questions than the ones given in the form interrogatories.
For instance, the form interrogatories ask the responding party to identify their current address, place of employment, and income for the past year. A special interrogatory can ask for additional employment, extend the time frame, and ask about other sources of income.
A request for admission asks a party to admit specific facts that all parties know. This is often done in court proceedings to establish facts everyone agrees are true, such as the date of the marriage.
Requests for admission are seldom used in divorce discovery because few facts are not at issue.
A deposition is a statement made by a witness or party to the case in response to an attorney's questions. Witnesses make depositions under oath in front of a court reporter or transcriptionist. Depositions are transcribed and may become part of the court record. The deponent receives a subpoena that requires them to appear.
Most states limit how long a deposition session may last. The Federal Rules of Civil Procedure (FRCP) limits a deposition to seven hours. Most states follow that rule. If a deposition is not finished within that time, the attorneys must agree to continue questioning on another day.
There are several reasons to hold depositions:
- To compel a reluctant witness to give testimony
- To get a party to make a statement on the record before appearing in court for impeachment or other purposes
- To see how a witness will conduct themselves under questioning
Both attorneys must appear at a deposition. The opposing attorney may question the witness and object on the record, although the witness must answer all questions.
The Purpose of the Divorce Discovery Process
The reason for sharing information is to ensure all parties receive a fair share from the marital property division. If there are minor children involved and there is a custody dispute, judges must resolve questions of employment, appropriate housing, honesty, and trustworthiness.
The discovery process reveals everything. Attorneys must have a good client relationship in family law. If a client has a hidden bank account or a history of domestic violence in another state, discovery will find it. Early disclosure is always the best policy.
Judges seldom jail parties for contempt during dissolution proceedings. Lying or fraud will hurt you more during settlement negotiations. Sanctions can include increased alimony and paying all costs and attorney's fees.
No one is happy about divorce. Legal advice from an experienced divorce attorney can help. A divorce lawyer can handle the exchange of documents during the discovery phase of the divorce. Find a knowledgeable divorce attorney near you.
Can I Solve This on My Own or Do I Need an Attorney?
- You may not need an attorney for a simple divorce with uncontested issues
- Legal advice is critical to protect your interests in a contested divorce
- Divorce lawyers can help secure fair custody/visitation, support, and property division
An attorney is a skilled advocate during negotiations and court proceedings. Many attorneys offer free consultations.
Don't Forget About Estate Planning
Divorce is an ideal time to review your beneficiary designations on life insurance, bank accounts, and retirement accounts. You need to change your estate planning forms to reflect any new choices about your personal representative and beneficiaries. You can change your power of attorney if you named your ex-spouse as your agent. Also, change your health care directive to remove them from making your health care decisions.