So you or your spouse have filed for divorce? The next step in a divorce is to start the discovery process. Both parties can come to a fair agreement when information is exchanged.
Knowing the details and workings of divorce discovery can prepare you for negotiations and possible headaches.
What is Discovery?
Like a real criminal court case, discovery is the legal fact-finding process that takes place before the trial and after the filing.
Different information, documents, and testimony are gathered and shared with the other party. The sharing of discovery ensures a fair trial for everyone involved.
Laws and regulations can vary from state to state, but the overall goal is the same. Here is some information that will be requested from you and your spouse:
- Financial assets
- Investigative work
- Personal information
Some of the information pertaining to finances will be paystubs, investments, bank statements, and property appraisal.
In some cases, you might be asked to hand over cell phones or email correspondence.
Have you hired a private investigator? Did you set up a hidden camera somewhere in the house? Depending on your state laws, remember that any evidence you collect will have to be turned over to the party and judge.
If there’s information to find, discovery will bring it out in full transparency. Lawyers can be difficult. Ask a judge to penalize your spouse’s attorney if they refuse to turn over evidence.
Make sure you are speaking to a divorce lawyer who can fight for you.
Questions you’d like answered truthfully under penalty of perjury are called interrogatories. You can request that these questions be answered in 30 days, but both sides can file objections to questions.
The interrogatories are not meant to be questions that are asked during the trial. Some of the questions will include very basic or publicly available answers.
An example of questions might include the following:
- What is your education level?
- What are your life insurance policies?
- How many vehicles do you own?
Try to limit the number of questions you ask, or the other party may file an objection saying the questions are overwhelming.
Admissions of Facts
The admissions of facts are facts to be confirmed or denied by your spouse.
If you are divorcing someone due to irreconcilable differences involving religion, then you can send a request for admissions of facts to your spouse. If you believe your spouse has conflicting religious beliefs, you can request they admit it.
You or your spouse do not have to respond to a request for admissions of facts, but failing to respond in a timely manner will be seen as an admission of fact.
Check with your local laws to understand the rules for your region.
The court likes to utilize admissions of facts to avoid unnecessarily long cases. A lawyer doesn’t have to continually question someone if it’s already been admitted as fact.
Once a statement has been admitted as a fact, it’s extremely hard to go back and change your admission. Unless you’re under pressure or duress, a judge probably won’t let you change your answer.
Request for Production
This is the part of the discovery that requests documents and hard evidence from either side.
Here are examples of things you can request:
- Credentials of any expert witnesses you plan to call
- Any multimedia evidence
- All written reports or signed statements
- Social media posts
You do have the right to object to the requests if there is proprietary information, national security matters, or requests that are too broad. If you want to object, it needs to be done in a timely manner.
Depositions in the Discovery Process
Depositions are statements made by you, your spouse, or witnesses under oath. They can be made in the presence of your lawyer with a court reporter or with all parties in a conference room.
These statements can be used in court if someone decides to give testimony contrary to the deposition. Your deposition will be transcribed for all parties.
Today, many depositions are recorded on video to ensure accuracy and to prevent a party from accusing anyone of misinterpreting testimony.
If a person is unable to testify in court, depositions can be used in their place.
Depositions are often viewed as luxuries in a divorce case. The reason for this is due to the cost associated with convenience. Parties will often push for depositions if they are seeking a settlement out of court.
Be Open and Honest
Divorces are extremely emotional and personal. There are times you may want to act out of spite, but you could make things worse.
Holding on to discovery to annoy your spouse can have serious ramifications. You could be fined or possibly jailed. Withholding the discovering from your spouse will make a fair settlement impossible for you.
One of the biggest things to learn in a court case is not to upset the judge. If you try to hide or delay discovery, a judge can order assets to be awarded in full to your spouse.
It can be embarrassing to have all your dirty secrets exposed to lawyers and your spouse, but it will be over quickly if you are open and timely with discovery.
Just because both parties know of discovery does not mean it has to be admitted as evidence. A skilled lawyer can file motions and appeals to have information or assets excluded.
Once a final divorce settlement is signed, it is not the end of the case. If it’s later proved one party hid discovery from the other, a case can be reopened and judgments passed.
As the discovery process unfolds, be prepared for the unexpected and have a good lawyer by your side.
You want to hold all the cards at the negotiation table and during a trial.
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