What is Discovery?
Once your divorce has been filed and the ball gets rolling, there are different steps you will go through if you or your ex are using attorneys. The first of which is the "discovery process."
“Discovery” is a legal mechanism designed for gathering information about either party to the divorce. There are five discovery methods that are used to gain information from the other party before going to divorce court.
If you use discovery correctly, you can find out what arguments the other party intends to use at trial and prepare a better defense. The discovery process can be time-consuming, expensive and, at times frustrating. It may be the only means you have of obtaining information you will need that is admissible in court. That makes the process worth the effort.
5 Steps in the Discovery Process
There are five steps to the discovery process. Although states and their laws may vary during the discovery process, the five steps below are common and will probably become a part of your divorce. Each method will be discussed in detail throughout this article.
- Disclosure: Both parties request certain items from the other party. The list of items is sent to the other side and they must respond within 30 days.
- Interrogatories: This is a list of questions that you send to the opposing side. Most states have limits on how many questions you can ask, and they must respond within 30 days.
- Admissions of Fact: This written list of facts is directed at the other party. The party receiving the list of facts is asked to either admit to or deny each fact.
- Request for Production: Used to obtain documents such as bank statements, statements of income or any documents you feel will benefit your case.
- Depositions: During a deposition, you will take sworn testimony from the opposing party and any witnesses involved. Anything said during a deposition can be used in court should an agreement not be met and you go to divorce court.
Disclosure is the process by which each party to the divorce “discloses” to each other and the court, documents and other evidence they intend to use during divorce court. Documents that should be disclosed include any that will help the party’s own case or harm the other party’s case. If you feel your spouse has documents or hard evidence such as photos, videos or emails you should file a motion with the court requesting “disclosure" of said documents and evidence.
Although it doesn’t always work out this way, it is a general duty to all parties in the divorce action to disclose any documents or evidence that will help achieve justice. If you file a motion requesting disclosure, you should expect the opposing counsel to do anything but actually disclose the documents or evidence. If this happens and they then show up in court with the requested documents or evidence the judge will consider it unreasonable conduct.
It is within your legal rights to ask the judge to penalize the opposing party for failing to disclose the documents or evidence. Be sure to bring a copy of your motion for disclosure the court with you. There should be a copy in your case file but court clerks have been known to lose case documents. It’s in your best interest to bring copies of all paperwork filed by you to court with you.
Interrogatories are written questions submitted to the opposing party during the divorce process. Interrogatories must be answered, truthfully, under penalty of perjury within 30 days. The opposing party may object to answering the questions if they feel they are arduous in nature and have no bearing on the case.
Most state laws will limit the number of questions asked since some attorneys will bury the other side in interrogatories to try to keep them burdened with paperwork. Interrogatories should be straightforward, asking for information that would be readily available. Only include a question in your interrogatories after you have made an attempt to obtain the information by other means.
Not only will you be able to send the opposing party interrogatories, they will also be able to do the same. Below are some sample responses you can give if you feel their questions are too burdensome or request information you do not have:
- Joe Black objects generally to Jane Black’s first set of interrogatories on the grounds that they are overly broad and burdensome. Joe Black has made a good faith effort to respond to the interrogatories but reserves the right to object and move to have vacated all of Jane Black’s interrogatories.
- The following responses and objections are based upon information not known. Joe Black has not yet completed discovery or preparation for trial in this action and therefore will supplement these responses and objections to the extent required by the Rules of Civil Procedure.
- My name is Joe Black. I reside at XYZ Nowhere Street, Anywhere, State. I object to the remainder of the interrogatory as being irrelevant and invasive of my privacy.
Below is a list of sample interrogatories. Interrogatories vary from case to case depending on the particular issues in the case. These samples are meant to give you a general idea of what type questions you may ask and what wording to use. Remember, when you send Interrogatories send a copy to the opposing party/counsel, a copy to the court and keep a copy for yourself.
- State your present residence address, and identify all other persons residing at your residence address.
- Describe in detail your educational background, and include the names and addresses of all institutions that you have attended, the dates of attendance, and a description of the degrees or certificates that you have obtained.
- Describe each position of employment held by you, and include the name and address of your employer, the dates of your employment, your official title, if any, a description of all compensation that you received, including bonuses and any benefits provided by the employment.
- Describe in detail all of your sources of income or compensation, whether or not reported on any tax return, and, as to all income and assets or services received, set forth the income, assets or services received, the nature and amount of any deductions or set-offs, and the net amount received.
- Describe in detail each and all of your assets, not including household goods and furnishings.
- List all household goods and furnishings in your possession and state your opinion as to the fair market value of each item.
More Sample Interrogatories
- Set forth the name and address of each of your creditors, the basis for each debt, the contents of any written evidence of each debt, the date each debt was incurred, the amount due on each debt as of the date of the Answers to these Interrogatories, whether the obligation is contingent, and a description of any such contingency.
- Set forth the name and address of each bank or credit union in which you have had any checking account, savings account, money market account, trust certificate, certificate of deposit and any other account in your name, or with any other party, and state the balances in each of said accounts.
- If you have created either an irrevocable or revocable trust, describe in detail each instrument incorporating such trust. In lieu thereof, a copy of each trust instrument may be attached hereto.
- Describe each policy of life insurance on your life and/or your spouse's life, setting forth the name of the company issuing the policy; the number of each policy; the amount of each policy; the type of insurance, whether whole, endowment, level term, reducing term or otherwise; the names of the primary and/or contingent beneficiaries designated in each policy; and the amount of cash surrender value for each policy as of the date of the Answers to these Interrogatories.
- Set forth the make, model, year, fair market value and owner of any automobile, recreational vehicle, trailer, motor home or boat owned or used by you.
Admissions of Facts
A request for “admissions of fact” is a list of short sentences which include facts which the opposing party is required to respond to. This list may be served upon the opposing party and any other party you feel has pertinent information in the same way interrogatories are. For example, if your state allows divorce on the grounds of adultery, you may send a request for admissions of facts to your spouse and the other man/other woman. If you suspect the parties were together on certain dates and times you can request they admit to that fact.
If the opposing party fails to respond within 30 days it is consider to be the same as an admission of the fact or facts. State laws vary regarding rules of civil procedure for admissions of fact. Research you state’s civil procedures and rules for how to serve a request for admissions of fact.
Requests for Production
You may request documents from the opposing party that relate to issues in your divorce case. The “request for production” of documents must set forth the items to be inspected. You must describe the documents by individual item or by category. Below are samples of information or documents you can ask for:
- 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 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.
According to nolopress the definition of deposition is, “An important tool used in pretrial discovery where one party questions the other party or a witness in the case. Often conducted in an attorney's office, a deposition requires that all questions be answered under oath and be recorded by a court reporter, who creates a deposition transcript. Increasingly, depositions are being videotaped. Any deponent may be represented by an attorney. At trial, deposition testimony can be used to cast doubt on a witness's contradictory testimony or to refresh the memory of a suddenly forgetful witness. If a deposed witness is unavailable when the trial takes place—for example, if he or she has died—the deposition may be read to the judge in place of live testimony.”
Deposition is a last resort if you are a Pro Se Litigant (representing yourself) due to the expense. You have to pay a court reporter for their time, pay for the transcript from the deposition, you will have to pay for the services of an attorney or paralegal because most states do not allow depositions to be taken by anyone other than court personnel.
If you find you need to depose a witness who is not able to be present in court research your state's rules of civil procedure regarding depositions. Luckily, most Interrogatories, Requests for Production, Disclosures and Admissions of Fact produce any documents or evidence you will need at the time of your divorce court hearing.