Divorce Discovery: What to Expect and How to Deal With It
It's not easy to decide to file for a divorce. Even if the divorce is amicable, you and your spouse must settle a wide range of issues. For instance, you must split marital assets and property between the two of you, which takes time.
Regardless of how well you and your spouse communicate, you will likely need to complete the discovery process. Divorce discovery involves gathering all information that could be relevant during your divorce. It’s a legal process that requires oversight by a lawyer. Before you reach the discovery stage of your divorce, read our Hello Divorce guide to the divorce discovery process and how to deal with it.
What is discovery during divorce?
Discovery is a common process that occurs in most divorces. The purpose is to gather information about each member of a couple so everyone clearly understands the financial elements of the marriage. Many different types of information are discoverable, including the following:
- All financial documents and records
- Employment records and information
- Text messages
- Criminal history
- Driving history
What are the types of discovery during divorce?
Before you enter the divorce discovery process, note that numerous types of discovery may occur during your process. The types of discovery that you should know about include the following:
- Formal disclosures
- Admission of facts
- Request for production
The first step in the divorce discovery process involves formal disclosures. These center mainly around your finances. The documents you and your spouse must produce during this step include the following:
- Any insurance payouts received by you
- Titles or deeds to property you currently own
- Records and statements from businesses you own
- Personal property and the total value of this property
- Bank statements
- Investment statements
- Evidence of current property value
Disclose information about all debts you currently owe during this process. If you have kids, share relevant details about their care at this time. Your disclosure statement should also include the names of any witnesses you will want to call during divorce proceedings.
Interrogatories are essentially written questions. You must answer the questions under oath. This is one of the more extensive steps of the process since it can involve many different questions. For instance, you'll be asked general questions about your education, annual income, assets, work history, background, personal property, insurance policies, trust fund info, real estate holdings, and retirement accounts. Keep in mind that these questions can be answered with the consultation of your lawyer.
Admission of facts
Either party can send the other party as many as 25 requests for admission. You will deny or accept each of these standard statements. If you don't respond by the deadline, the statements will be considered true, or accepted. These admissions are extremely difficult to get overturned. They are used during the court process and legal proceedings. Even if you forget to deny one of the statements, you won't be able to easily change your story once the trial occurs.
Request for production
A request for production allows one spouse to ask the other for a specific document they wish to examine. Along with the financial documents mentioned above, a request for production can involve everything from witness statements and emails to photographs and videos. If one party ignores a request or refuses to grant it, a judge may order that the requested documents are produced.
This is a method for obtaining witness testimonies before a court hearing or trial. You and your spouse may be the only two parties deposed in your case. Regardless of how many depositions occur, you can be present at each deposition alongside your attorney. Deposed individuals must answer all questions under oath. These statements can then be referenced later in the case. If your story changes, your spouse could point toward a previous statement you made.
Subpoenas serve to request information from entities or people who aren't directly involved with the divorce case. Two types of subpoenas may be ordered. These are a subpoena ad testificandum and a subpoena duces tecum. The first type of subpoena orders the individual who receives the document to testify at a trial or deposition. The second type of subpoena is used to order an entity or person to produce specific documents.
When does discovery occur?
The discovery process occurs during what's known as the pre-trial stage of a divorce. Along with identifying pieces of information that can later be used during the case, discovery helps lawyers learn more about the case. In turn, this helps them make their arguments if the case goes to trial.
Discovery is almost always necessary during a divorce. Even if you and your spouse agree on the particulars of the divorce and how to divide assets, discovery can help both parties reach a fair and equitable resolution. Your lawyer will ultimately help you decide if discovery is necessary. If you don't want to go through the discovery process, there are ways to avoid it, which we detail later on this page.
Who initiates the discovery process?
Discovery begins almost immediately after you file for a divorce. Your attorney (or your spouse's attorney) initiates it. Even though ample information can be gathered during the discovery process, the timeline of this process can be very short or very lengthy. It hinges on how much you and your spouse cooperate.
The discovery process can be relatively informal or highly rigid. In most cases, attorneys request information via formal disclosures which eventually include interrogatories, admission of facts, and requests for production. You will have a set number of days to answer these requests before depositions begin. A single deposition can take anywhere from 15 minutes to a few days. Subpoenas may also be issued at this time to obtain additional documents or depositions.
What should I ask for in discovery?
The divorce discovery process is designed to cover all documents and pieces of information that may prove relevant to the case. If the divorce is contentious, the documents you request could give you the information you need to prove your spouse is in the wrong. Your attorney will gather all the types of information mentioned previously. The necessary information will include everything from financial documents and retirement account details to bank and investment statements.
What if my spouse won't cooperate with discovery?
If your spouse ignores a discovery request or lies in one of their statements, they could face severe consequences. The same is true if you fail to be completely truthful during discovery. A judge could fine you or sentence you to jail. However, jail time is rare in these situations. Be honest with your attorney. If you don't provide them with all of the facts, they won't be able to properly protect your interests.
What are the pros and cons of going through divorce discovery?
Many find divorce discovery worth the extra time it takes to complete the process. Whether your divorce case moves to trial or settles before a trial, exchanging information with your spouse can help you reach a fair conclusion to the case. This stage of the divorce process may benefit you if your divorce is contentious. For example, if your spouse hides relevant documents from you, discovery can uncover them.
Here are some benefits of going through discovery:
- Renders a more fair settlement
- Provides you with a clearer picture of the situation
- Prepares you for a trial
There are also some negatives of discovery:
- Strict deadlines
- Needing to hire a lawyer
- High costs
- Extensive legwork
Can I avoid divorce discovery?
It's possible to avoid the divorce discovery process by reaching a settlement with your spouse during the mediation process. Mediation is more likely to succeed in an amicable divorce. A third-party mediator represents you and your spouse while you work out your differences and hopefully come to an agreement on everything, from spousal support to property division. Both parties must waive their right to discovery in this situation.
Who can help me with the divorce discovery process?
If you need help during the divorce discovery process, consider hiring a divorce lawyer. The lawyer will represent your case throughout every stage of the process and can submit requests for information. You can also contact us at Hello Divorce to speak more about divorce discovery and what it might mean for your case.
Glossary of discovery terms
- Financial disclosure: A disclosure of bank statements, proof of assets, and other financial documentation
- Admission of facts: Requests sent from one spouse to another of statements that can be approved or denied
- Discovery: The discovery of information and documents relevant to the divorce case
- Deposition: A witness testimony that is often given in writing and under oath
- Interrogatory: Questions each spouse must answer about their finances and personal lives
- Mediation: A kind of meeting between both spouses and a third-party mediator to resolve differences and reach a settlement agreement
- Notice to produce: A notice you may receive from your spouse's attorney to produce a specific document
- Subpoena: A document produced by a judge that requires an appearance in court or submission of a document