Divorce Discovery: What to Expect and How to Deal With It
- What is divorce discovery?
- Preparing for discovery: A user-focused guide
- Key facts about divorce discovery
- What does the divorce discovery process look like?
- What if a spouse won't cooperate?
- Timeline and cost
- Pros and cons
- Can you avoid it?
- Where to get help
- Divorce discovery glossary of terms
- FAQ
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.
Divorce is designed to be fair to both spouses and the way to ensure this fairness is to have complete transparency. Discovery is the phase of the divorce process where each side shares their information in preparation for dividing their property and determining other matters, like spousal support, child support, and child custody. It requires a full disclosure of each spouse’s assets, debts, and any other information that could be relevant to a couple’s divorce case.
Discovery can also provide each side with a solid legal foundation for any evidence that could be presented in court or used in settlement negotiations.
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.
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.
Preparing for discovery: A user-focused guide
Shortly after your divorce is initiated, both lawyers will begin to exchange information with each other. This enables both sides and the judge, to have a complete picture of your financial life and the nature of your relationship. A complete picture helps everyone evaluate your situation and make the fairest decisions.
A great deal of information will be exchanged during discovery, which can be a labor-intensive process. Furthermore, it requires both parties to share all of their financial records, property records, and personal data honestly and forthrightly, not hiding anything or holding back information. Both lawyers may ask questions to make sure you’re both being honest in your responses. Failure to do so could not only result in penalties, but it could also work against you during the rest of the divorce process.
If your communication has been contentious to this point, you will also want to bring copies of any correspondence between you, such as texts or emails, and the names of any witnesses you intend to call.
Discovery is required in any contested divorce. However, if you and your spouse can come to a fair settlement agreement between you, your divorce will be considered an uncontested divorce, and discovery may not be required at all.
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
Divorce isn’t just the end of your marriage. It’s also the process of legally dividing everything you own jointly as a couple. In most states, couples must fill out financial paperwork independently and share it with each other. 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.
The financial affidavit is basically a worksheet that asks about the financial status of you and your spouse separately and jointly. Mandatory disclosure forms typically ask for information about income, expenses, assets, and liabilities. You will also be asked to provide financial documents to support your answers on the affidavit.
Documents you might need
What kind of documents and information will you need to gather to support your financial affidavit? You will want to gather these documents in preparation for discovery:
- Your financial affidavits
- W-2 statements
- 1099s
- Tax returns or pay stubs, even if you filed jointly
- Any insurance documents
- Any bank statements and credit card statements
- Mortgage documents
- Property appraisals
- Any other loan paperwork
- Information regarding any investments, stocks, and bonds you own
- Retirement accounts
- A compilation of your healthcare costs
- Appraisals for certain assets, including businesses owned by you or your spouse
While it’s always best to freely offer these documents and information, there are ways the court could force compliance.
2. Interrogatories
Written questions comprise the second step. Your lawyer or your spouse's lawyer compiles a series of questions involving your background, assets, income, retirement accounts, and more.
You will answer these questions in writing under oath, under penalty of perjury, with the assistance of your lawyer. Your answers could be seen by the judge, so it’s important to answer them respectfully, as if the court was questioning you. If you feel a question isn’t appropriate or irrelevant, ask your attorney if you could object to it, but don’t just skip it.
3. Notice to produce
To further the goal of complete transparency, both lawyers will determine what bits of data might be missing and ask the other party to provide them for the case. These documents could include financial documents such as tax returns and bank statements, recorded statements by others, correspondence between you and your spouse by email, or other pertinent documentation.
While you might not physically possess a document, you are obligated to gather that information if it is in your control.
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. This reduces the number of issues that will need to be proven in court. 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 can be used to obtain records from third parties, such as employers or financial institutions, to gather additional information that may be relevant to your case.
6. Depositions
A deposition is a session where you, your spouse, or a witness give oral testimony under oath, usually in the presence of both lawyers. Depositions allow for more in-depth questioning regarding any information that was previously provided in the documents or interrogatories. 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 a 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.
Legal consequences of not complying with discovery
Discovery is designed to ensure fairness and transparency in the divorce process, and non-compliance by one spouse hinders this process. Consequently, if you don’t comply with discovery requests, it can have serious legal repercussions and lead to adverse rulings against you in the divorce proceedings.
You could be found in contempt of court
If you willfully fail to comply with discovery requests, you could be held in contempt of court, resulting in potential fines, attorney fees, and even jail time in extreme cases. The court may issue a Motion to Compel with the discovery requests, and a failure to comply with this can escalate the severity of your penalties.
The court could make negative assumptions about your non-compliance
If you fail to comply with discovery requests, the court could make negative inferences from that. For example, the court may presume you are hiding assets or other information, causing an unfavorable ruling against you in support decisions or property division.
Your credibility could be diminished
Your non-compliance could damage your credibility in the eyes of the court and have a negative impact on decisions the court makes on key issues in your settlement. It could also weaken your position during settlement negotiations.
It can affect you financially
If you are not compliant with discovery requests, you may be ordered to pay your spouse’s attorney fees and costs. Furthermore, it will prolong the litigation process, increasing both the time and cost of your divorce.
It could result in a default judgment
Extreme cases of non-compliance could result in a default judgment against the non-compliant spouse. A default judgment will decide the case in favor of the compliant spouse without any input from the non-compliant one.
How long does discovery last and what does it 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.
FAQ about divorce discovery
How can I protect my privacy during discovery?
While the discovery process can feel like you are offering up your entire life for review, you are also entitled to your privacy. This can be a fine line.
If you can convince the court that the information your spouse is seeking is irrelevant to your divorce proceeding or intended to harass, you may be able to file for a protective order that will limit the scope of discovery, preventing your spouse from gaining access to certain private information. Another possibility is objecting when a request is irrelevant or unreasonable. But objections should be used judiciously so they are not considered discovery misuse by the court.
How can I avoid discovery altogether?
If you can cooperate and reach a mutual settlement agreement with your spouse, you may be able to avoid discovery altogether. However, it’s still important to have a transparent understanding of all your assets and debts to ensure that you make decisions in your own best interests. It may be helpful to get the assistance of an independent divorce mediator who can help guide discussions between you and your spouse to promote fairness.
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.
