The Right to Know: The Discovery Process in Divorce

August 13th, 2015 by

truth-1030x771So, you’ve filed for divorce. What happens now? More times than not, cases enter into a phase of divorce known as discovery. Discovery is a tool used for the disclosure of information and documents regarding a couple’s economic, financial, and personal information that is relevant to their case. While discovery can often be the longest part of the divorce process, it is often the most important. It can help determine how to fairly divide assets, retirement accounts, property, and yes, even debt.

The following is a basic breakdown of discovery mechanisms that may be used in your case:

1. Written Discovery

A. Mandatory Disclosures are usually the first step in the discovery process required by the Court. This document involves a Financial Disclosure Statement that supplies basic financial information as to income, assets, and expenses to be provided at hearing in Court.

B. Interrogatories are a set of questions exchanged between parties regarding topics that may be contested in the divorce. These questions can range across a broad spectrum of topics including children, income, and retirement accounts, etc. They are expected to be answered truthfully, under penalty of perjury. Your attorney will determine which questions are relevant to the case and assist you with regard to the same.

Sample Interrogatory Question: During the preceding three years have you made any gift of cash or property, real or personal, to any person or entity not your spouse?

C. Request for Production is a list of documents that opposing parties send to each other requesting a variety of documents including, but not limited to: bank and credit card records, pension and/or retirement fund statements, and pay stubs. The party is required to produce all requested documents unless it is considered burdensome or irrelevant to the case. Your attorney will help determine what needs to be produced.

Sample Request: Produce all documents reflecting any and all accounts and deposits with any financial institution, bank or credit union, which you or the Requesting party own an interest in.

D. Requests for Admission are a rare discovery tool, but can often be used as an effective way to get contested evidence into trial. These questions often begin with “Admit or Deny” and then state a fact. It can also be used to authenticate the genuineness of documents. After the document is served, the party has thirty days to answer or all questions are deemed admitted.

Sample Question from Request for Admission: “Admit or Deny that you drink four glasses of wine a night.”

2. Depositions (Oral Discovery)

Depositions are a form of oral testimony that allow lawyers to ask questions under oath regarding crucial information for trial. Depositions can be taken of both parties and of third-parties that are aware of relevant issues in the case, when necessary. A transcript of the deposition can be used to challenge the credibility of a witness if it is not consistent with what was initially stated.

3. Subpoena

Subpoenas are a court order requiring a witness to appear at a court date or produce certain documents on or by a certain date. They are usually used to obtain testimony or documents from non-parties who do not have a vested interest in the case. Failure to comply with a subpoena could result in being held in contempt of court.

4. Social Media

While not a formal tool of discovery, the use of information gathered from social media networks in divorce cases is on the rise. It is important to note that any information posted on Facebook, Twitter, Instagram, etc. can be used against you. For example, it would probably not be the best idea to tell the judge you lack funds to pay your household bills, but “check in” at an expensive hotel on Facebook while on vacation.

As always, consult with your attorney with any questions or concerns during the Discovery process in Divorce.

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