Assuming you and your spouse have hired attorneys, once your divorce has been filed and the ball gets rolling, one of the first steps of working through a divorce is called the discovery process. Essentially, discovery is a legal framework for both parties to gather information for the divorce before you go to court.
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By definition, discovery is part of the pre-trial phase of a divorce in which each side obtains evidence and information from the other side.
The Importance of Discovery
Discovery includes methods such as disclosure, interrogatories, admissions of facts, requests for production, and depositions. "Each type of discovery plays a different role, but they relate to each other strategically," says Joseph Hoelscher, Managing Attorney at Hoelscher Gebbia Cepeda PLLC, in San Antonio, Texas.
We won't sugarcoat it: The discovery process is time-intensive. However, it might be the only route you have to gather all of the information you need to make or defend your case in court. According to Casey M. Reiter, Esq., a Florida-based family law and appellate attorney, during discovery as part of a divorce, information identified may be applicable to a host of issues, such as custody, which assets are available for distribution, and income available for alimony and child support, for example. Discovery enables "both sides to assess the relative strengths and weaknesses of the case, and facilitate the settlement process," says Reiter. Meaning, get ready to dig up and track down lots of financial and personal information.
Although states and their laws may vary during the discovery process, the following elements of discovery below are common and will probably become a part of your divorce. Ultimately, the type of discovery you and your spouse go through will depend on how cooperative you two are, how much information each of you have, and how much you're willing to spend to pay for discovery actions. Read on about the five elements of the discovery process when filing for divorce.
According to a blog post by Scottsdale, Arizona-based Burggraff Tash Levy PLC family lawyers, you and your spouse will be legally required to disclose all assets, such as:
- Any deeds or titles to property that you own
- Any bank statements
- Any investment statements
- Evidence of property value
- If there is a business, the statements, and records from the business
- Any personal property and its value
- If relevant, any insurance payouts
You will also need to disclose any debts, including credit cards, liens, notes, or mortgages, writes Justin Tash of Burggraff Tash Levy. If you have children, information relevant to their care will also need to be disclosed, as well as any witnesses you will call upon during the divorce proceedings. Remember to make copies of all of your case documents. If necessary, you do have a legal right to ask a judge to penalize the opposing party for failing to disclose documents or evidence, writes Jason Crowley, CFA, CFP, CDFA in a blog post for Survive Divorce.
"An interrogatory is simply a question," write the San Diego-based divorce attorneys at Bickford, Blado & Botros, in a blog post. More often than not, both parties must answer any question by an attorney, whether it's yours or your spouses. Common questions you may be required to answer will be related to income, assets, and debts. They can also be used to have a party provide facts about their educational background, work history, and earning history, which could be helpful in presenting an alimony claim, says Reiter.
Interrogatories can come in the form of customized questions by a lawyer (called "Special Interrogatories") or be presented using an official form. In this form, questions regarding alleged agreements between spouses regarding assets, debts, and support; claims for reimbursement, and claims for credits may be asked, explains Bickford, Blado & Botros. Interrogatories help your attorney pinpoint what your spouse wants from you, what arguments they will plan to present to justify their claims, and vice versa.
"The number of interrogatories is limited in each jurisdiction, so lawyers will work hard to craft these questions to get as much relevant information from each one," says Hoelscher. In California for example, that limit is 35.
Request for Admission
Throughout the discovery process of divorce proceedings, you may receive a request for admission. According to the Legal Information Institute at Cornell University's definition, this is a request that another party admit or deny the truth of a statement—under oath. "If admitted," writes the Institute, "the statement is considered to be true for all purposes of the current trial." Requests for admission may also be utilized to confirm the authenticity of a document.
Adds Reiter, "If the party admits to a fact, now you don’t have to prove it during trial." Conversely, "If the party denies a fact, you know you have to prove it during trial. If a party wrongfully denies a fact, they could be subjecting themselves to an award of attorney’s fees by the opposing party for having to spend the time and effort to prove a fact that should have been admitted." Failing to respond to a request for admission, says Reiter, would ultimately be admitting to said fact.
Request for Production
"Requests to produce can be used to obtain additional documents—either documents missing from disclosure, or even documents regarding assets you suspect are being hidden," explains Reiter. Documents requested should articulate the items to be inspected, and to do so, you'll need to describe the documents by individual item or by category. For example:
- All written reports of each person whom you expect to call as an expert witness at trial
- All documents upon which any expert witness you intend to call at trial relied on to form an opinion
- All written, recorded, or signed statements of any party, including both parties to the divorce, witnesses, investigators, friends, family members or employer of the parties concerning the subject matter of this divorce action
- All photographs, videotapes or audio tapes, emails, surveys or other graphic representations of information concerning the subject matter of this divorce action
- Any documents received pursuant to a subpoena request from any party
While documents are critical in all litigation, says Hoelscher, in many divorces, "they are the only source of key information." Bank account statements, for example, "are a wealth of information not only about spending, but of lifestyle. Yet, in many marriages, only one spouse actually has access to the info," continues Hoelscher.
Requests for production should also be specific. "For example, if financial information is provided in response to a request for documents related to net worth, but not in a request for production of information related to infidelity, then a lawyer can object to the use of those documents to prove that one spouse was regularly visiting shady massage parlors," says Hoelscher.
In a way, depositions are used similar to the way news organizations utilize the fact checking process before they publish an article—it's a form of quality control. "While written discovery will give you information, many times it is sanitized by an attorney who assists in preparing the answers. However, in-person depositions will allow you to see how the deponent will present him or herself in court and allow you to ask follow up questions based on answers you receive in real time," says Reiter. Depositions are also used to dig deeper, beyond the paperwork.
"Further, depositions allow you to go over documents with the deponent (who could be a party, or any other witness) and ask many more details than you would be able to via interrogatories (which are limited in number)," adds Reiter.
NOLO. Formal Discovery: Gathering Evidence for Your Lawsuit. Updated 2020.
Cornell Law School Legal Information Institute. Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions. Updated n.d.