Understanding Discovery in Divorce Proceedings

What is Discovery in Divorce?

Divorce Discovery is the formal process used to gather necessary information from your spouse in a divorce. You have until 60 days before the trial to conduct discovery. Discovery methods include:

1. Request for Production of Documents: A formal demand to obtain documents such as bank statements, medical records, pay stubs, and tax returns.
2. Interrogatories: Written questions that must be answered truthfully under oath. These include Form Interrogatories, which are standard queries in divorce cases, and Special Interrogatories, which are customized to your specific circumstances.
3. Requests for Admissions: These require your spouse to confirm or deny statements under oath, helping to establish certain facts as true for the trial.
4. Depositions: An oral testimony session held outside of court, recorded by a court reporter, where your spouse answers questions under oath.

Discovery can also be extended to third parties via subpoenas, which are useful for acquiring documents like employment records or other pertinent information not held by your spouse.

Is Discovery Mandatory in Divorce?

While discovery is a powerful tool in divorce proceedings, employing it is entirely up to you. It serves as a critical means of gathering information, which can significantly influence the outcome of your case. Each situation is unique, and the decision to use discovery should align with your strategic needs in the divorce.

Pros

Participating in discovery can significantly enhance your understanding of the marital assets, debts, your spouse’s income, and the evidence they might present at trial. Being well-informed is essential to safeguard your interests and ensure an equitable division of assets.

Cons

Despite its benefits, discovery can be costly and time-consuming. It may also escalate conflicts if your spouse decides to respond in kind. Moreover, discovery can be misused as a tactic to intimidate or overwhelm, although legal protections against such abuse exist.

How Long Do I Have to Respond to a Discovery Request?

Responses to discovery requests are typically due within 30 days of service, or 35 days if served by mail. Timely responses are crucial as delays can waive objections to the requests.

What if I Don’t Respond to a Request?

If either you or your spouse does not meet the deadline for responding to discovery requests, you lose the right to object to those requests. Thus, it is critical to reply promptly. If more time is needed, requesting an extension is advisable. Such extensions are common and securing a written agreement to extend the deadline can safeguard your right to object and protect your legal interests.

Should a party not respond to discovery, or if their responses are inadequate, the seeking party may petition the court for a motion to compel the provision of answers or documents. Before taking this step, it’s generally beneficial for both parties to discuss any unresolved discovery issues. This discussion, known as a “meet and confer,” should occur prior to lodging a motion to compel. If no initial response was provided, the meet and confer is recommended but not mandatory.

After all reasonable efforts to settle the discovery disagreement have been exhausted, a motion to compel is likely to be filed. A motion to compel must be filed no later than 45 days following the receipt of the discovery responses. If there is no response to the discovery, a motion to compel can be filed at any time. Should a trial date be set, a hearing for the motion to compel needs to be scheduled at least 15 court days prior to the trial. This motion must include:

1. A Request for Order;
2. A Declaration detailing the efforts made to resolve the issue.
3. A specific statement outlining the discovery request or interrogatory, the contents of the response, and how the response was lacking.
4. A Memorandum of Points and Authorities, presenting the legal rationale for compelling the other side to produce the required information or documents;
5. An Income and Expense Declaration (if attorney fees are being claimed).

If a party fails to comply, the court may impose sanctions. These sanctions can be either Monetary or non-monetary. For instance, the prevailing party would be awarded attorney fees in a discovery dispute. Some non-monetary sanctions include issuing sanctions that establish certain facts without proof, evidentiary sanctions that limit evidence presentation by the non-compliant party at trial, or terminating sanctions which could dismiss pleadings or advance divorce proceedings without further input from the non-compliant party.

The Divorce Discovery process can be intricate and overwhelming. Using discovery effectively requires a careful balance, understanding when to deploy these tools to gather crucial information while avoiding unnecessary escalations and expenses. Given the complexities involved, it’s recommended that you seek professional assistance. Contact Jafari Law and Mediation Office today to consult with an experienced Divorce Attorney who can help streamline your case and safeguard your interests through every step of your divorce proceedings.