Soon after divorcing spouses file the initial court papers to get the divorce process started (the divorce/dissolution petition and the answer to the petition), they will exchange information related to their respective economic, financial, and personal situations — including the extent of their property ownership, debt, and income. The exchange of this information is known as the "discovery" process.
By examining the information exchanged during discovery close to the start of the divorce process, a divorcing couple, their attorneys, and the court can begin to decide how to fairly divide up property and how to deal with divorce-related issues such as child support and spousal support (alimony).
Discovery can take place through an informal exchange of information and documents by the parties and their attorneys (common in divorce cases), or the process can follow a number of more rigid procedures. Following is a discussion of the different formal devices used in discovery.
In "document production" both spouses make available all documents that relate to the divorce, the marriage, their separate property, incomes, etc. Any party has a right to see most documents that even arguably relate to the divorce and related issues that will require resolution — including division of property, finances, and debt; child custody and visitation; payment and receipt of child support; and payment and receipt of spousal support (alimony).
Interrogatories and Requests for Admissions
Interrogatories are questions requiring a spouse’s version of the facts and support for his or her demands. These questions can be pre-printed "form" interrogatories, or specific questions asked just for your case called "special" interrogatories. Questions can range from the broad ("Describe your current relationship with your children") to the specific ("Is it your position that respondent’s taxable income for 2004 was $45,000?"). If the questions asked are not fair questions or are difficult to understand, your attorney will help you decide which questions should be answered and which should be objected to.
"Requests for admission" are not often used in divorce cases, but they can be very powerful tools. Requests for admission ask a party to admit or deny certain facts pertaining to the divorce and related issues, and they carry with them penalties for not answering, for answering falsely, or even for answering late.
Depositions are sworn statements, when a person will answer questions from an attorney, and a court reporter will make a transcript of all that is said. Depositions can range in length from an hour to a week or more. Although all attorneys have their own strategies for depositions, there are basically two reasons to use them: to see what the other side has, and to do a "practice trial," that is, to see how a witness will appear and conduct themselves before a judge or jury.
Your attorney will tell you what he or she wants from you if you are deposed, but there are two general things to remember. First, never guess. The purpose of a deposition is to give facts, not to speculate as to what might have happened or what the right answer might be. Even if it makes you self-conscious to say it, sometimes "I don’t know" is the right answer. Second, it is human nature to want to explain things so that your listener understands, but you should resist the impulse. It is your opponent’s job to get the answers. It is your job to answer only the question asked, not to offer additional information.
Things to Remember About Discovery
- Keep in mind that it is very likely that anything and everything will come out at some point in the discovery process. In divorce cases, this is especially true if the case becomes contentious and emotions run high.
- It is imperative that you be honest with your divorce attorney about the facts and documents that may come out. He or she can’t do the best job if you don’t disclose everything.
- Be honest. Nothing will make your position in a divorce case worse than lying in discovery and getting caught (i.e. about hidden assets, etc.), and it is likely that you will get caught if you are purposefully dishonest.