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Divorce Discovery: What to Expect and How to Deal With It

Lawyers are storytellers. In court, they weave testimony, documents, and facts into a compelling case that benefits their clients. To do this work effectively, lawyers need data. The discovery process makes that possible. 

During discovery, both sides gather information about the witnesses and evidence they’ll share during the trial. Everything one side compiles is shared with the other, so lawyers have a sneak peek at the case long before the judge calls the court to order. 

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What is divorce discovery?

Gathering research and sharing it are the two tasks completed during divorce discovery. The process helps your lawyer understand the strengths and weaknesses of your case. When you go to trial, your lawyer can use this data to help you get what you want. 

Discovery happens long before the trial starts, and plenty of rules guide the process. For example, lawyers can use discovery to force the other side to give evidence that can be used to build their case. And no one can ignore discovery requests. Doing so could lead to stiff sentences and fines. 

Since discovery is a legal process, your lawyer typically initiates it. As soon as you file for divorce and hire your lawyer, the work begins. 

The timeframe can vary depending on the following:

  • Complexity: High-conflict divorces with plenty of assets require more discovery than simple cases. 
  • Collaboration: When two sides work together, the process moves faster. 
  • Urgency: Some legal teams use delay tactics during discovery, ensuring the process moves very slowly. 

Your lawyer will ask for all documents and data relevant to your divorce case. Anything you think could help you explain your side is fair game during discovery. 

It’s common for lawyers to ask for bank statements, credit card bills, and home assessments. But your lawyer might also ask for witness statements or expert opinions too. 

Key facts about divorce discovery

Discovery is part of a contested divorce that goes to trial. About 90% of divorces are uncontested, meaning they never involve entering a courtroom. 

Divorces are considered civil cases. Of all civil cases, more than 60% concluded by trial involve alleged injury, loss, or damage by others. 

Divorce discovery can take a considerable amount of time to complete. In Utah, for example, people have 28 days to respond to a request for documents during discovery. 

The median cost of a divorce is $7,000, but contested divorces in court can cost $20,000 or more. 

What does the divorce discovery process look like?

Soon after you file for divorce, your lawyer and your spouse's lawyer begin exchanging information and gathering data. Every case is a little different, but most involve these steps: 

1. Formal disclosures

In most states, couples must fill out financial paperwork independently and share it with one another. While you likely shared assets and debts during your marriage, you must both outline what you have and owe. Your lawyers can look for inconsistencies in these documents and dig deeper to build your case. 

2. Interrogatories

Written questions comprise the second step. Your spouse's lawyer compiles a series of questions involving your background, assets, income, retirement accounts, and more. You answer these questions in writing with the assistance of your lawyer. 

3. Notice to produce

Your lawyer determines what bits of data might be missing (such as a home appraisal, recorded statements made by others, or key email messages) and asks the other party to provide them for the case. 

4. Confirmation

During the Admission of Facts stage, your spouse's lawyer provides a series of statements that you must confirm or deny. You'll send a similar request to your spouse. Your lawyer will help you answer carefully, as these statements are hard to retract once they're given. 

5. Subpoenas

Both lawyers compile lists of people or entities that have information relating to your marriage. Some subpoenas require people to testify at trial or in a deposition. Others ask the person or organization to provide some kind of document or proof. 

6. Depositions

Witnesses, including both you and your spouse, head to a lawyer’s office to give a statement on the record. A court reporter keeps track of everything you say, and those recordings are shared with the other party. 

A deposition doesn’t always negate your need to speak at trial. Sometimes, lawyers use these opportunities to catch a lie. If you answer one way in a deposition and another at trial, this could be an excellent follow-up question. 

What happens if my spouse won’t cooperate with discovery?

In some types of divorces, spouses can refuse to answer questions or participate in the process. A discovery is different. 

Discovery is a legal process managed by lawyers. Your spouse can't opt out of these steps or refuse to participate in them. Your spouse's lawyer will handle all the details. 

How long does discovery last & cost?

Lawyers need plenty of time to prepare cases, and discovery can drag on even in simple cases. Many states give people weeks to respond to requests, and scheduling demands can make getting statements and depositions tough. Expect to spend several weeks or months in discovery.

Since lawyers charge by the hour and do most of their work during discovery, this can be one of the most expensive phases of a divorce managed by the court system. 

Pros and cons of divorce discovery

The discovery process can be incredibly helpful for your lawyer. When it's complete, your legal team will have a clear understanding of your marriage and a coherent strategy for defending your case in court. 

But discovery can be long, expensive, and stressful. Each time the other party asks for a document, witness, or piece of evidence, your lawyer must find it. Some spouses barrage their former partner with requests, knowing they're inflicting harm in the process. 

Can you avoid divorce discovery?

No court case can move forward without discovery. It’s a foundational part of how courts work. If you’re relying on a judge to end your marriage, you must participate in discovery.

But you could collaborate with your partner to end your marriage out of court. You could also use discovery to entice your partner to settle your differences, so you can end your marriage without a court date.

Where to go for help

You can't tackle the discovery process without a lawyer. This is a legal process that's initiated by one lawyer and completed by your spouse's lawyer. 

If you want to work with your partner outside of the courtroom to end your marriage, you can ask for documents and proof. But without a lawyer, you can't force the other side to tell you the truth or participate in your research process. 

Divorce discovery glossary of terms 

These are some of the common terms used throughout the discovery process:

  • Admission of facts: These are statements sent from one spouse to another for approval or denial.
  • Deposition: This is witness testimony (or statements) given under oath. 
  • Discovery: This involves gathering information and documents relevant to the case and sharing them with the other party. 
  • Financial disclosure: This involves sharing information about your bank accounts and estate. Typically, this is part of the discovery process.
  • Interrogatory: These are questions regarding finances and the marriage that both spouses must answer in writing under oath. 
  • Mediation: Both spouses meet with an impartial third-party mediator to resolve differences. 
  • Notice to produce: This is a formal request from an attorney to provide a document for the divorce case. 
  • Subpoena: This is a formal requirement to appear in court or submit a document. 

References

How Courts Work. (November 2021). American Bar Association. 
Discovery. Cornell Law School. 
What Is an Uncontested Divorce? (July 2022). Forbes
Courts. (February 2021). Bureau of Justice Statistics. 
Disclosure and Discovery. Utah State Courts. 
How Much Does a Divorce Cost in 2023? (July 2022). Forbes.
How Courts Work. (November 2021). American Bar Association.