While divorce discovery is not often discussed in conversations about litigation, it is one of the least-understood but most important aspects of any divorce case.
Discovery occurs during the pre-trial phase of a divorce. It is the formal process by which each side obtains information and evidence from the other side. Lawyers use the discovery process to develop a better understanding of the case. Using information gained in discovery, a lawyer will refine his or her position and how to best approach your case.
The goal of discovery is to ensure that each side has the same information about the case. This leads to a more fair negotiation and allows each side to understand the evidence the other side will present if the case goes to trial.
Depending on the level of cooperation between you and your soon-to-be-ex-spouse, discovery can go smoothly or it can become very contentious. Disputes about discovery are not uncommon and can cause delays and cost lots of money.
What Is Divorce Discovery?
During divorce discovery, the lawyers exchange information to opposing counsel. In a divorce, there may be a significant amount of information that must be exchanged so the lawyers and the judge can arrive at a complete understanding of a couple’s finances in order to properly evaluate issues like property division and child care responsibilities.
While divorce discovery is a labor-intensive process, each side must cooperate and honestly provide information. Failure to do so can result in penalties that will ultimately work against you in your divorce.
The lawyers drive the discovery process, asking one another’s clients to provide documents and other information so they can each represent their clients to the best of their ability. Each lawyer is looking for evidence that will be presented at trial. But they may ask certain questions to make sure you and your lawyer are being honest and forthcoming in your responses.
The lawyers will also evaluate the evidence received during discovery to develop a sense of what will happen if the case goes to trial and to obtain information that is needed to properly and fairly evaluate your case and negotiate a fair resolution.
Even though the vast majority of divorce cases do not go to trial, a good lawyer will prepare every case as if it will go to trial. Preparing every case as if it will go to trial is the best way to negotiate a favorable resolution. Information learned in discovery will become the foundation of arguments and evidence presented during settlement negotiations and at trial.
The Divorce Discovery Process
There are different forms of discovery, including Interrogatories, Requests for Production of Documents, Requests for Admission, Depositions, and Subpoenas.
Shortly after the divorce has been initiated, the lawyers will begin exchanging information with one another. Lawyers often begin by serving Interrogatories, Requests for Production of Documents, and Requests for Admission on the other party. Generally, discovery must be responded to within 28 days. However, lawyers may agree to an extension. Once the lawyers have exchanged these documents (sometimes called “written discovery”) they will schedule depositions.
Interrogatories
Interrogatories are written questions that must be answered under oath, under penalty of perjury. Interrogatories often ask general questions about a person’s background, such as education, work history, assets and income, a list of personal property, and information about insurance policies, retirement accounts, trust fund information, and any real estate holdings. You will answer Interrogatories in consultation with your lawyer.
Requests for Production of Documents
Requests for Production of Documents are formal requests to provide specific documents, or categories of documents, that contain information related to your divorce. Requests for Production of Documents may seek financial information, photographs, videos, emails, and written or recorded statements made by friends, family, investigators, and anyone else with information about the divorce. They will also seek information relied upon by any experts who were consulted in connection with the divorce.
Requests for Admission
Requests for Admission are a series of short, pointed questions stating facts that you will be asked to either confirm or deny. Requests for Admission are often used to identify issues that are not in dispute. They can also be a powerful tool in a divorce case because once a party has admitted a certain fact, it can be difficult to change their story at trial.
Subpoenas
Subpoenas are used to request information from people or entities that are not parties to the lawsuit. There are two types of subpoenas: a subpoena duces tecum and a subpoena ad testificandum. A subpoena duces tecum commands the person or entity receiving the subpoena to provide the documents requested in the subpoena. A subpoena ad testificandum commands the person receiving the subpoena to appear to testify.
A lawyer could issue a subpoena to a bank or financial institution commanding them to produce certain financial statements or to compel a witness to testify for a deposition or at trial.
Depositions
Once the lawyers have exchanged documents, they will schedule depositions.
A deposition usually takes place in a lawyer’s office with a court reporter present. The witness swears to tell the truth, the lawyer asks questions, the witness answers, and the court reporter types everything that is said. In some cases, the deposition will also be recorded on video.
Lawyers will schedule depositions of the parties to the lawsuit, fact witnesses, and witnesses who will be called to testify as an expert. Depositions of parties to the lawsuit are scheduled through a Notice of Deposition. Depositions of non-parties can be scheduled by agreement of the lawyers, or by using a subpoena ad testificandum.
The purpose of a deposition is to provide the lawyer with insight into both how a witness will testify at trial, and what the witness will say. Deposition testimony can be used at trial to impeach a witness if they testify differently than they did in the deposition.
If Someone Does Not Comply with a Discovery Request
Ignoring discovery requests, responding late, or lying in discovery can result in serious consequences. A judge may penalize you for not answering truthfully, you could be fined, or, in the most severe cases, you could end up in jail.
A good divorce attorney will help you through the discovery process, and challenge requests made by the other lawyer.
In addition to being honest with the other side, it is critically important that you be honest and forthcoming with your own lawyer. Your lawyer cannot properly protect you and your interests without all the facts. It is far better for a lawyer to know about a potential problem and be able to plan for it, than for the lawyer to be surprised on the eve of trial by something he or she did not know.
Contact RKPT for Assistance with Your Divorce
If you are considering a divorce and need the advice of an experienced Ohio divorce attorney, we welcome you to contact us. From our offices in Cincinnati, we proudly represent people throughout Ohio and the Midwest. Wherever we are needed, we are dedicated to helping our clients and their families make well-informed decisions about their future.
