Discovery isn’t always talked about a lot in divorce, but it can be one of the most critical steps to ensuring you have a complete understanding of the facts – particularly if your spouse is being less than forthcoming.
If you’re involved in an attorney-driven divorce (aka litigation), chances are discovery will be part of the process.
So if you want a better understanding of what to expect, you’ve come to the right place.
By definition, discovery is part of the pre-trial phase of a divorce in which each side obtains evidence and information from the other side. The goal of discovery is to make sure that both sides have the same information that will allow you to better negotiate a fair agreement as part of your final settlement.
In addition, a judge must be in possession of all the facts of your divorce so that fair decisions can be reached if he or she needs to make rulings.
Depending on the level of cooperation between both sides, discovery can either proceed relatively smoothly or it can become dicey and contentious, causing a lot of delays and costing a lot of money.
People often dread discovery because there is a lot of information that may need to be gathered which can result in a very labor-intensive and tedious process. But you must cooperate fairly and honestly or run the risk of incurring penalties that could work against you in a big way.
There are different kinds of discovery and the types of discovery you go through could be influenced by the issues that need to be resolved. Discovery can also be impacted by the level of cooperation between you and your spouse, how much access each of you has to certain information and how much your budget can withstand to pay for various discovery actions.
Discovery can include interrogatories, requests for production of documents, requests for admissions, depositions and subpoenas.
Part of the hassle of discovery is that you may be asked to produce documents and information your spouse already has. But attorneys will be driving the process and they will want to make sure they have all bases covered so that can represent their client to the best of their ability.
It’s also fair to note that at times, an attorney will be looking for hidden assets or testing the other side to make sure they are being fully forthcoming.
This is all part of the process to get an overall picture of how much money, earning power and assets a spouse has. Discovery can also be sometimes used as a weapon when it comes to requesting alimony, child custody or child support, depending on laws of a state.
While both sides are often able to negotiate a settlement without going to trial, an attorney will act as if a divorce is going to trial. The information that comes out in discovery is the foundational basis for arguments and facts presented in a trial.
Even the best attorney can lose a case or gain an unfavorable settlement if they are unprepared or did not conduct thorough due diligence. The last thing you want in a divorce trial is to be ambushed or surprised by the introduction of information you are not prepared to react to, placing you squarely at a disadvantage.
The other consideration is that if the other side senses that you are not prepared or have not asked the right questions as part of discovery, they make take that to mean you are at a distinct disadvantage. If you’re not equipped to go to trial and the other side senses that you want to avoid a trial, they are very likely to push a trial agenda.
If you don’t enter a potential trial from a prepared position of strength, you will not be able to negotiate a settlement from a position of strength either.
How discovery works in a divorce is driven in part by how much cooperation, trust and level of complexities there are between a couple.
If both sides agree to cooperate instead of going to war, there is a mutual and peaceful level of trust and the issues are fairly simple to resolve, discovery can be completed with a minimal amount of disruption and anger.
Think of it as a transaction to be completed instead of a battle to be won and you will save yourself a lot of time, money and grief, both in the discovery phase and in your overall divorce process.
While certain elements of discovery will vary from case to case and from state to state depending on what laws are in place, many parts of discovery are the same no matter what the circumstances are.
Shortly after filing paperwork and serving your spouse, there will be an exchange of financial affidavits. After an initial review, both parties can request additional information informally through email or other similar means. There is generally a 30-day time limit during this phase, but laws can vary a bit from state to state.
After that, other forms of discovery may kick in.
After an initial exchange of financial information and informal requests have been completed, both sides can start a more formal form of discovery. After reviewing documents, many times the first step is to file a motion seeking more details to help your case and harm or rebuke the other side’s case.
This can include seeking hard evidence such as photos, videos, emails, or documents. If you file a motion, do not expect that the opposing attorney will gladly turn over what you are requesting.
It is within your legal rights to ask the judge to penalize the opposing party for failing to disclose the documents or evidence if they do not cooperate. Be sure to bring a copy of your motion for disclosure the court with you when you attend a hearing.
After formal discovery has taken place or concurrent with formal discovery, both sides may submit written questions to each other that must be answered truthfully under the penalty of perjury. A response is generally required in 30 days, but either side may file an objection if they feel the questions are harassing and have no bearing on the case.
Many states will also limit the number of questions that can be asked. This is because some attorneys will attempt to play hard ball and bury the other side with a mountain of requested information that will create an undue burden.
Interrogatories should only ask for information that is readily available. This can include things such as:
Interrogatories can be pre-printed “form” interrogatories, or specific questions asked just for your case. These are called “special” interrogatories and can be broad in nature (i.e. What is your current relationship with your children?) to very specific (i.e. Is it your position that your taxable income for the year 2017 was $200,000?)
To get a better idea of all the types of questions that can be asked, check out California Family Law Form FL-145. This will give you a better understanding of what to expect when the possibility of interrogatories is raised.
A request for admissions of facts is a series of short sentences that either side may be asked to respond to. These include facts that the other side must either confirm or deny.
For example, if your state allows divorce on the grounds of adultery, you may send a request for admissions of facts to your spouse and the other man or woman. If you suspect the parties were together on certain dates and times you can request them to admit to that fact.
When a party does not respond within 30 days, it is considered the same as an admission of that fact. Rules for the admission of facts will vary by state, so your attorney will need to guide you through this part of the discovery process.
Admissions of Facts can be extremely beneficial in a case. For example, once a written admission is made it makes it very difficult for the other party to change his or her story at the time of trial.
Requests for Admission of Facts tend to reduce the length of the trial because certain facts are deemed admitted thus reducing the number of unresolved issues.
This is a formal request for the other side to produce specific documents related to your divorce. Each documents must be described by an individual item or by a category of documents.
For example, you can request things such as:
It is possible to object to Requests for Production of Documents that are overly broad or otherwise improper. This must be done in a timely manner and when protocols are not followed, an improper objection can result in a response of a Motion to Compel, along with the sanctions that can accompany such a motion.
Depositions are sworn testimony from an opposing party or witnesses in a divorce. This testimony can be used in court and can be used to uphold any agreements that were made during the deposition.
In other words, during a trial, deposition statements can be used to refresh a suddenly forgetful witness or to cast doubt on a witness if they provide testimony that contradicts what is in a deposition.
Depositions often take place in an attorney’s office under oath and with a court reporter present. The reporter makes a deposition transcript after the fact. At other times, a video deposition may be taken instead.
If a deposed witness is unavailable when the trial takes place (i.e. if he or she has died) the deposition may be read to the judge in place of live testimony.
The down side of depositions is that they can add a lot of cost to a divorce. You will have to pay for the services of the attorney, or paralegal, pay for a court reporter and pay for the transcript from the deposition.
For these reasons, divorce attorneys will often rely on Interrogatories, Admissions of Fact or Request for Production instead to get what they need.
Technically speaking, subpoenas don’t really fall under the discovery bucket.
But they’re another avenue to obtain information.
When other forms of discovery fail to produce the desired results, an attorney may turn to issuing a subpoena that will require a person (or business or financial institution) to comply with requested information.
A subpoena is a legal document ordered by the court that requires a person to act in a specific way. If you receive a subpoena you can be required to show up to court, produce documents, or show up in court with documents.
Subpoena is actually a Latin phrase that means “under penalty.” So, a subpoena is a court order that is punishable by law if it is not followed.
They can be served on either spouse, on other family members, or on third parties who may have information or evidence that is relevant to the case.
This is an especially effective tool when certain parties on one side of the divorce do not want to share highly personal or volatile information that could damage someone they care about. A subpoena forces them to participate.
There are three types of subpoenas that are used in family law matters. They are a personal appearance, a production of documents or a hybrid subpoena of the two.
A personal appearance subpoena can be used to order a person to show up in court or at some other legal proceeding to testify under oath.
With a compelling presentation of documents subpoena, a recipient will not need to show up in court to testify. It can be used to require a person to turn over documents that are relevant to a legal proceeding.
However, in some cases, the hybrid will require a person to show up in court with documents in hand. When asking for documents that may need a bit of clarification or explanation, this can be a great tool.
It’s not a good idea to ignore a subpoena if you have been served with one.
They are issued under the authority of a family law court and ignoring a lawful court order is a form of contempt. It is punishable by civil fines and criminal charges.
If you do not obey a subpoena you may be subject to harsh financial consequences and even end up behind bars.
The short answer is that it depends on what kind of issues you need to have resolved.
If you are making a case for a fair and equitable division of assets, then you will focus on all kinds of financial documents from tax returns, to pay stubs, real estate holdings, lists of personal property, and so forth.
If you are more focused on dividing a business that you may be entitled to a share of, then you will seek all business records including income and balance statements, annual sales, payroll records, and full business banking information.
If you are involved in a custody dispute, then you will want records related to the conduct of your spouse, including any proof that they abused drugs or alcohol or that they committed acts of domestic violence.
If you suspect your spouse is hiding assets, you’ll need to consult with your attorney about a comprehensive approach based on your individual circumstances that will reveal the missing assets.
In general, when in doubt, go ahead and ask for what you think you need. If it’s (overly) broad or inappropriate, the other side can object and seek relief. Then it will be up to the court to decide what’s permissible and what is not.
Remember, your financial future is at stake, so be thorough as you work through discovery. You want to arm yourself and your attorney with the best possible information to make sure you are protected going forward.
Preparation is the key and will put you in a stronger position as you negotiate your settlement or prep for a trial that will determine how your future will shake out.
Finally, stick to the facts and zero in on exactly what you will need to bolster your arguments. Doing so will save you time and money.
Also, don’t use discovery as an opportunity to embarrass or spite your spouse. Stick to your core goals and keep your emotions in check or you could be stirring up a hornets nest for no good reasons.
Make no mistake about it, not complying with discovery in any form is not smart. Sooner or later, everything will come out in a divorce that is supposed to come out, especially if a divorce is emotional and highly contested.
In addition to being honest with the other side, you must be honest with your own attorney. They cannot protect you or your interests if they don’t possess all the relevant facts about your situation.
Discovery done right can be expensive and time-consuming. But discovery done wrong can be ten times worse and result in damage to your life that could take years to recover from.
If you get caught lying or hiding assets, you can be subject to all sorts of consequences. A judge might award the full value of an asset you attempted to hide to the other spouse, you could be fined, and if your actions are egregious enough, you might actually wind up in jail.
It’s not much different if you simply freak out and don’t respond to discovery requests. Non-action is one small step above lying. You could make a judge angry and you could lose any leverage when it comes to trying to negotiate a fair settlement.
Sure, the questions will be personal and invasive. That’s why divorce stinks. But you will only make things worse if you don’t play the game the right way.
Keep in mind, that with a sharp attorney, you can find ways to limit discovery by throwing up legitimate challenges. A good attorney will also know how to dig for information on your behalf and despite the expenses, you could come out in much better shape.
Also pay attention to deadlines. Any legitimate objections that you may have to the discovery will be automatically waived if you do not file your answers in a timely manner.
When you don’t respond, the other side can file a motion to compel with the court. The court will generally grant these motions and may do so without a hearing.
At this point you will have no choice but to answer the questions or face the possibility of being held in contempt of court.
In some cases, punishments can be levied against you so you can end up paying the opposition’s attorney’s fees and have your evidence blocked by the court’s ruling at the same time.
Guilty spouses have been assessed court costs, ordered to pay the private investigator bills of the opposing party, and had premarital agreements or postnuptial agreements voided. Judges really frown upon spouses who attempt to cheat their spouses and the court.
There’s more potentially bad news if you lie about your assets in court. You might be charged with perjury for testifying falsely under oath. In California, for example, that means you can serve up to four years in jail for perjury.
Or you might be charged with fraud if a prosecutor decides to charge you with deceiving the other party by hiding assets.
If you hid assets and you think you’re home free because the final settlement has been signed, think again.
If proof surfaces at a later date that a spouse hid assets, a spouse can petition to reopen a divorce settlement that could still result in significant penalties. The aggrieved spouse also could file civil charges against an ex and request monetary and even punitive damages.
Like it or not, the smart thing to do is to just follow the laws and procedures when it comes to the discovery process in your divorce case.
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Jason Crowley is a divorce financial strategist, personal finance expert, and entrepreneur. Jason is the managing partner of Divorce Capital Planning, co-founder of Divorce Mortgage Advisors, and founder of Survive Divorce. A leading authority in divorce finance, Jason has been featured in the Wall Street Journal, Forbes, and other media outlets. He is a Chartered Financial Analyst, Certified Financial Planner practitioner, and Certified Divorce Financial Analyst. You can email him at jason@survivedivorce.com.
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