Step 5 – Exchanging Discovery
Divorce proceedings are immensely personal by their very nature. This means that virtually all aspects of the spouses’ lives will need to be explored and accounted for in reaching a fair result. This process of gathering information is known as discovery and it begins as soon as the client contacts the attorney regarding the divorce.
Information Gathering By Attorney
Experienced counsel will waste no time in beginning to gather information from his or her client. This information will be highly personal in nature, but it is important, above all else, to give accurate information regarding each subject. It is likely not surprising that attorneys will require “routine” information about the parties involved—both regarding the spouses and children of the marriage—that includes names, addresses, dates of birth, and social security numbers. However, divorce also involves the division of property and debts. This means that income, debts, and assets (such as stocks, real estate, investments, retirement packages, etcetera) will also need to be disclosed in full. This information is vital to achieving a fair distribution and favorable result.
Attorneys will often request this information through a questionnaire. However, documentation of these facts will also be necessary. Gathering pay stubs, mortgage statements, and bills will be essential to developing the full picture of what must be accounted for in the court’s division. Credit reports for both spouses will also generally be collected by the attorney. If the couple owns a house or other real property, an appraisal of the value may also be necessary, and especially in the event the parties cannot agree on a value to attribute to the home. This is particularly true when the property was purchased long ago.
Another source of information includes social media accounts. Courts are still dealing with exactly how to use social media accounts in the context of evidence law, but these accounts offer an unprecedented view into the minds of litigants, even when the accounts themselves cannot be used at trial. Photos and posts can reveal key facts, particularly when the grounds for divorce are fault-based. Experienced counsel will warn clients of the perils of online posting, even when such posts are done with high-level privacy settings.
Attorneys are empowered with discovery tools once a divorce proceeding has been filed in court. These tools are used to force the other spouse and third-parties to provide information and documents that can be used in litigation. These tools are a double-edged sword, however—both spouses have equal power in using them. The process of discovery begins even before the Petition is filed, but does not continue indefinitely. The court will set a date by which all formal discovery must be completed. This date will generally not be until very near trial, giving each side ample time to complete the process.
Though many discovery tools exist, two are by far the most used and powerful: requests for production and interrogatories. Request for production seek documents that the other party has. These will include paystubs, bank statements, and property records. The requests will be sent to the opposing party, requesting documents connected or associated with a certain aspect of the case. The whole world is not fair game, but the scope of these requests is very broad. So long as the request deals with something connected to the issues of the divorce or may lead to the discovery or admissible evidence, the party will need to respond. This means everything from credit card statements to personal text messages may need to be turned over. The party can object to both the request—generally directed at being too broad or too irrelevant—as well as having to produce the documents. If the two sides cannot reach an agreement, the court will be called upon to make a ruling as to whether documents have to be produced. The court may also punish a party for withholding such information through fines, known as sanctions, or other unsavory actions.
Interrogatories are written questions that the spouse must answer. The answers are submitted in writing and must be sworn as true. These questions can cover an equally wide range of subjects as requests for production. This means that they can get quite personal and pointed, especially when the grounds for divorce are fault-based. Because of the nature of interrogatories, additional limits are placed upon this discovery tool. Many courts will place a limit on the number of interrogatories a party may direct to the opposition. If more are needed, the party will have to seek the court’s permission before sending these. Interrogatories are also subject to the same procedure concerning compelling production.
Along with its written counterparts, depositions make up the last of the big three formal discovery tools. A deposition is best thought of as trial testimony outside the courtroom. The witness will be sworn in, just as witnesses are in open court. The opposing attorney will then ask the witness questions that must be answered. During the entire process, a court reporter will be taking down the answers and creating a record of the deposition. The range of subjects a deposition may cover is very broad, just as with written discovery. Experienced attorneys will use depositions to attempt to rattle witnesses on points they believe are inaccurate or untrue. Again, the personal nature of divorce proceedings can lead to very intense, invasive questioning by attorneys. The testimony provided at depositions can be used both to gather information and as evidence at trial.
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