Common Types of Discovery in a Divorce Proceeding

Once the initial paperwork in a divorce proceeding is filed, both parties must complete what is called a “Preliminary Declaration of Disclosure.”  This disclosure mainly consists of two documents, the first is the party’s “Schedule of Assets and Debts” and the second is the party’s “Income and Expense Declaration.”  Just as the names imply, these forms are designed to gather information related to each parties’ assets, debts, income, and expenses.  In addition to being mandatory, these disclosures are due early on in the case and are extremely important as they will be the framework for which a settlement, if possible, is reached.

But what happens if a party needs to gather additional information about their partner’s income, assets, debts, or other facts?  What if that information is not provided in the other party’s disclosure?  This is often the case in complex divorce cases.  The manner in which a party gathers such additional information is usually through discovery.

Discovery is the exchange of information and/or facts between the parties.  Discovery can occur informally, formally, or both.  Informal discovery is the most cost-effective way to request information from the other side.  Through this process, the party and their attorney simply request specific information or documentation in a letter or phone call to the opposing counsel or party.  It is typically best to first try to request information this way because it shows that the attorney and/or party is settlement orientated with the goal of keeping attorney fees low.

However, if the other party is refusing to provide the requested information, or dragging their feet on sending the requested documents, formal discovery is your only option for obtaining the needed information.  Formal discovery requires the other attorney and/or party to follow specific rules and procedures when responding to the discovery request.  Formal discovery also allows for judicial remedies if the other party’s discovery responses are late, insufficient, or not served at all.

There are several different methods of discovery, including but not limited to, (1) interrogatories, (2) demand for the production of documents, and (3) requests for admissions.

Interrogatories are written questions from one party to the other.  Interrogatories focus on outstanding issues in the case.  These questions often relate to a party’s income, debts, and living situation.  The party answering the interrogatory must sign their response under penalty of perjury.

Demanding the production of documents is the manner in which to request documentation from the other spouse such as bank statements, credit card records, and loan documents.  This type of discovery is very helpful for spouses who never handled the finances in the marriage and need additional information before agreeing on a settlement.

If you send the other party a request for admissions you are asking them to either admit or deny certain facts in your case.  The answering party must also respond under penalty of perjury.

Discovery can be a powerful tool.  It is important to know what options you have during the pendency of your case, so it is best to seek the advice and counsel of an experience family law attorney.

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