Divorce from A to Z, Beginning to End- The Discovery Process

The discovery process can be both the most useful and most frustrating part of the divorce process. Discovery allows you to receive any information relevant to the divorce action. In order to have the right to discovery, demands must be timely made.

Usually, at your initial court date, the court will set deadlines for discovery. If these deadlines are not met, you may lose your right to make demands or, if you fail to timely respond, you may have certain issues decided against you.

Discovery demands may be served prior to the first court date. As the discovery process can be expensive, often it makes sense to wait to serve these demands until it is determined whether a voluntary exchange of necessary information can be obtained.

Discovery demands are not always necessary; every party to a divorce is required to file a verified Statement of Net Worth setting forth all assets, debts, expenses, and income, and sometimes this document alone will provide information sufficient to prepare for settlement or trial. Also, some attorneys and parties are cooperative and will provide any additional needed information with a simple verbal or letter request.

If discovery is necessary, a number of devices can be utilized. The Demand for Discovery is quite common, this document allowing a party to ask for certain documents relevant to the divorce to be produced for copying and inspection.

The demand must be specific enough to show which exact documents are requested and the relevance of those documents. For instance, a demand for “all banking statements” without reference to a time period may not be answered as bank statements prior to the marriage are probably irrelevant and the demand may be seen as overbroad.

A Demand for Disclosure may also be served. The Demand for Disclosure asks for answers and information. For instance, this demand may be used to ask what witnesses the other party intends to call, the location of property, etc. It is good practice to at least ask for the names of expert witnesses, their expected testimony and qualifications as you may need to hire your own expert to dispute the findings of the other party’s expert.

If you do not make the demand, you are unlikely to learn of the expert until it is too late to hire your own. Parties often hire experts to value property, and may hire experts relevant to custody issues, such as mental health professionals.

Additionally, a demand for an Examination Before Trial may be made. This can be the most expensive part of the discovery process and should be avoided if possible. This demand allows a party to take the deposition of the adversary party, and possibly witnesses, prior to trial.

The deposition takes several hours, or even days, and in addition to paying your attorney for their time at the deposition, you must pay a court reporter to attend and prepare a transcript of the examination. At deposition, almost anything can be asked even if the question could be objected to at trial. This can allow a party wishing to abuse the process to spend hours asking irrelevant or unimportant questions.

A party may wish to consider utilizing Interrogatories if there are important questions to be asked prior to trial. Interrogatories allow relevant questions to be asked, and sworn answers must be provided to interrogatories properly made. While the time needed to draft or answer interrogatories can be significant, the time is usually less than that expended in deposition, and the cost of the reporter is avoided.

If discovery demands are not timely answered, a party (or their attorney) must remind the other party that their responses are overdue. A party may file motion seeking relief as a result of the failure to timely respond to demands, but must show that a good faith effort has been made to resolve discovery issues prior to filing motion.

If motion is necessary, relief may be given by the court including giving an extension of time to answer the demands, awarding attorney’s fees to the filing party, and precluding the violating party from disputing any issues related to the information not provided.

Many parties are frustrated by the discovery process as it sometimes leads to great expense without any reward. A party wishing to cause the other party aggravation and costs can legally serve voluminous discovery demands. Unless such demands are obviously frivolous, no harm will come to the party serving demands.

Also, if a party fails to respond to reasonable demands in a timely fashion, it may take some time to gain compliance, and the court may only “punish” the other party for their non-compliance after the parties have spent hundreds, if not thousands, of dollars in attorney’s fees related to discovery. The offending party is usually given many chances to comply which is especially frustrating to the party following the rules.

In my next post, I will discuss custody disputes as part of the divorce action.