The discovery aspect of a divorce seems pretty self-explanatory: It is when either party collects (discovers) the evidence to support their side of the case.
However, it is more of a cooperative exchange of information than each side gunning to get dirt on the other. The more both sides work together in quickly responding — and more importantly truthfully — to requests, the less time will be spent trying to put everything together or sorting through the lies.
This phase is crucial in not only assembling and assessing the strength of your own argument, but also finding out exactly how your spouse’s side intends to plan their case against you.
It is also among the most complex aspects of a divorce, full of deadlines and penalties for failing to meet the regulations.
Although discovery can be a lengthy and relatively expensive process, it is arguably the most important part of a divorce proceeding. Not only are you able to support your own claims with evidence gathered under oath from the opposing party, but you get to take a peek into their playbook and see how your side stands up.
Just remember that this is a two-way street, so they also get to see what you are bringing to the table.
Once everything is out in the open, you can ideally come to terms on an agreed settlement and avoid the litigation process altogether. Although if you still cannot come to an amicable resolution, you will at least have the information you need to fight for your side in court.
It is difficult to overemphasize the importance of discovery when it comes to divorce. This is where your attorney has the opportunity to shine and the pro se litigant is put at a severe disadvantage due to all the specific deadlines and consequences for failing to comply.
Needless to say, the chances of those representing themselves figuring everything out are pretty slim.
The process of discovery comes with several different tools at your attorney’s disposal, and whichever are necessary will depend on the specific facts of your case. The primary methods used to gather information include:
This is usually the first step in the discovery process, and involves sending out written questions that require a response (which is considered under oath).
There is a limit to the number of questions asked in a set of interrogatory questions, generally 25, so phrasing is vital to getting the most information out of each individual question. Finally, most jurisdictions give 30 days to answer and return the questionnaires.
The questions generally pertain to financial information, such as asking for balances on financial accounts, lines of credit or outstanding debt; identity of any expert witnesses and an outline of what they have to say in testimony; employment and health history information; questions about requested relationships with any children; or any other relevant information that may help your attorney have a better understanding of the other side’s case.
When you are sending out your set of questions, your spouse’s attorney is likely drafting their own. Be prepared to answer a similar set of case-specific questions, and if you have any concerns, consult your attorney.
Although you must answer truthfully or run the risk of being charged with perjury, your lawyer can object to certain questions on the grounds of an unreasonable invasion of privacy, the question is too broad or it is irrelevant to your case.
Requests for disclosure
These requests require a written response from the opposing party and include an outline of their case. This contains a list of their witnesses, what experts were consulted, the conclusions drawn by those experts, invoices of their attorney fees and the legal theories behind their defense.
The information provided gives both attorneys what they need to compare the strength of each side’s argument and what they will face if the divorce comes down to litigation.
Requests for production of documents
Requesting access to any documents the other party has access to is vital toward understanding the whole picture of a case. You would ideally have an equal understanding of your spouse’s finances as you do your own, particularly if there are going to be requests for child support or maintenance.
There are no limitations on the number of requests you can make, though any requested document must be relevant and within a pertinent timeframe.
It is also important to answer all requests for documents to the best of your ability so you don’t end up limiting your own courtroom evidence: Any document that you cannot produce at your spouse’s request can be denied admission into court.
Requests for admissions
Requests for admission, though not often used in divorce cases, can simplify the need to prove contested issues. These requests are essentially a list of facts that ask the opposing party to “admit” or “deny” a series of statements.
Careful wording of the statements or careless answers by the opposition can lead to there no longer being a need to prove the fact otherwise, or show them to be a liar.
For example, if your wife admitted to drinking a bottle of wine every night, there would be no need to bring in evidence to prove a fact that could implicate alcohol issues.
If she denied the fact and you had evidence to back it up, then she would hurt her credibility with the court and still implicate potential alcohol issues.
There are further repercussions for declining to answer these questions as well: If you fail to respond, the answers are all deemed to be admitted. This can look really bad if some of the questions included simple things like, “I spend more time golfing than spending time with my kids.”
While they may not be taken with quite as much stock, you have already dug yourself a hole from the start of litigation.
Depositions are a tool to help prevent any surprises from occurring at trial, though they are most frequently used in high-conflict divorce cases.
The process involves deposing someone who is relevant to the case (usually the parties or any witnesses / experts) and asking them questions in a recorded environment under oath. These recordings are used to solidify testimony, and if it varies once they hit trial, can be used to show that the person is not credible.
While time consuming and expensive, depositions can help lock in testimony to prevent events from “changing” by the time you hit trial.
However, it can be tricky if you are the one being deposed. Your spouse’s attorney will be asking questions specifically for the purpose of trying to get you to admit something that will negatively impact your testimony.
There are many ways to prepare for a deposition, but the best thing you can do is be prepared.
The questions will often revolve around simple things, such as your children’s birthdays, what grade they are in, etc. You may very well know the answers, but in that high-pressure situation, it may feel impossible to regurgitate the most basic of information.
This does not look good on you, so having your attorney come up with a list of the kinds of questions you will likely be asked can help you “study” for the deposition. What you don’t want is to end up having testimony from your trial completely contradict your deposition.
This discovery method is used to require a third-party to produce documents relevant to your case and possibly show up at your trial as a witness.
This is a good way to obtain records pertaining to medical and employment history, criminal or police reports or many other pertinent documents that are held by a different party than you or your spouse.
The formal process of discovery can be more expensive and intrusive than coming to an unofficial agreement of information exchange; however, it comes with legal protocols and consequences for dishonesty.
It also sets deadlines, which help expedite the process as opposed to waiting on your spouse’s good faith.
Yes, discovery can be a hassle. Yes, discovery can take a while. But for a contested divorce, it is usually necessary to ensure both sides play by the rules and a truly fair agreement is reached.
Mat Camp is a former Lexicon Services Online Editor, who focused on providing a comprehensive look into all aspects of the divorce experience. On MensDivorce.com, he concentrated on issues, such as parenting time, custodial rights, mediation, the division of assets, and so much more.
Mr. Camp used the wealth of experience of Cordell & Cordell attorneys to bring tangible answers to reader questions in Ask a Lawyer articles, as well as offer a step by step process through the divorce experience with Cordell & Cordell Co-Founder and Principal Partner Joseph E. Cordell in Divorce 101: A Guide for Men.
Mr. Camp used thorough research to highlight the challenging reality that those who go through divorce or child custody issues face. He helped foster the continued success of the Men’s Divorce Survival Guide, the Men’s Divorce Podcast, and the Men’s Divorce YouTube series “Attorney Bites.”