Discovery Tools for Divorce, Dissolution and Separation Cases

Discovery Defined

Discovery is the legal process of obtaining important information during divorce, dissolution or legal separation. Spouses use it to gather information from each or from other third party sources like banks or employers. The formal discovery process begins once you and your husband initiate legal proceedings and it continues until you settle your case or reach the pre-trial discovery deadline, which usually occurs sixty days before the first day of trial. Documents and testimony that is obtained through discovery may be used to make informed settlement decisions or to prepare for trial. Discovery may also be used after divorce, dissolution or legal separation by former spouses to gather relevant information about ongoing issues like alimony, maintenance, spousal support and child support. It may also be used to obtain necessary information for post-divorce enforcement, modification or termination matters.

In discovery you are permitted to pursue any relevant information relevant that may be admissible at trial. This includes, but is not limited to, bank statements, pay stubs, mortgage applications, bonus reports, life insurance disclosures and property deeds.

The Four Discovery Tools

A wealth of information can be obtained during discovery and there are five discovery tools that are commonly used by lawyers and pro se litigants alike to gather records and testimony. These tools include Releases, Subpoenas, Requests, Interrogatories and Depositions.

Releases are legal documents that authorize third persons or organizations to release or produce documents and records to you, your husband, your lawyers or anyone other designated recipient. Releases are commonly used when spouses cannot find or do not have, necessary information such as bank statements or tax returns. Agencies such as the IRS have standardized forms like IRS form 4506T that may be used to request copies of tax returns on file. If yours is an amicable divorce and your husband is freely providing information, Releases are great tools that may be used to collect missing documents and records. If yours is contentious case, Releases can also be very useful, however you will probably need to ask a judge or commissioner to order your husband to sign the documents for your discovery purposes.

Subpoenas are legal documents that order a witness to appear or a custodian of records to produce information on a particular date and time. Subpoenas are usually served by a sheriff or process server well in advance of the deadline for the witnesses’ appearance or production of documents. Any person or entity that receives a Subpoena must comply unless a valid legal excuse exists. Failure to comply is punishable by law and may result in a contempt of court finding. Subpoenas are commonly used by one spouse to obtain information and testimony from a third party when his or her spouse refuses to sign a Release. The costs associated with preparing and serving Subpoenas can be reasonable unless the third party or entity charges significant fees for the production of information requested (i.e. a one dollar bank charge for every page produced plus a twenty-five dollar research fee.) Subpoenas should be issued during the initial stages of an adversarial divorce, dissolution or legal separation because a significant amount of time may be required for a third party or entity to produce the information or witness requested.

Requests are usually standardized formal written requests made by one spouse to the other for the production of relevant documents. Requests can be very lengthy and may require the production of documents dated before, during, and after the official end of marriage. The responding party’s production deadline is established by state law, however it is not uncommon for responses to be late due to delays caused by third parties like custodians of records at banks or employers, who maintain the requested documents. State law and local rules also establish the format and content of the responding party’s Response to Request for Production of Documents. A person may make several Requests during the discovery process in divorce, dissolution or legal separation proceedings as the need for more information arises. Documents sought may include, among others, financial, employment, school and medical records. (Use our Copy Cat Worksheet to identify documents you may wish to collect during discovery. The Copy Cat Worksheet is included in The Soul Centered Divorce, 7 Steps to Making Difficult Divorce Decisions with Confidence and Clarity)

Sample Requests:

You are requested to file within thirty (30) days a written response to request on the and to produce those documents for inspection and copying on May 1, 2008:

1. Bank statements, cancelled checks and check registers for Wells Fargo Bank checking account number ending in 6001 for the period beginning on May 1, 2005 and ending on January 31, 2008.
2. Credit card statements for Chase credit card number ending in 3861 for the period beginning on May 1, 2005 and ending on January 31, 2008.
3. Bonus reports prepared for you by your former employer John Doe, LLC for the period beginning on May 1, 2005 and ending on January 31, 2008.
4. Appraisals for the real property located at 1234 Cherry Lane obtained by you between May 1, 2005 and ending on January 31, 2008.
5. Loan applications prepared by you or on your behalf between May 1, 2005 and ending on January 31, 2008 for the purpose of obtain credit or credit approval for any reason from any lendor or creditor.

If yours is an uncontested case and your husband is freely providing requested information, formal Requests may not be necessary but nonetheless advisable because it is common for friendly divorces to turn sour. If yours is a contested case, Requests are usually the first formal discovery step taken in attempt to obtain necessary information. In the event you make a formal Request and your husband fails to comply, you can ask, and a court will usually order him to comply or potentially face contempt charges and fines.

Interrogatories are standardized formal written requests made by one spouse to the other for the production of truthful answers to the spouse’s relevant questions. Like Requests, Interrogatories can be very lengthy and may include questions that cover events and issues arising before, during, and after the official end of marriage. Deadlines for responding to Interrogatories are established by state law and a spouse must timely provide the requesting party with his or written answers that were made under oath and subject to penalty of perjury. State law and local rules also establish the format and content of the responding party’s Response to Request for Answers to Interrogatories. Interrogatory questions are usually open ended however they may also call for a “yes” or “no” answer.

Sample Interrogatory Questions:

1. What was the purpose of your June 15, 2006 trip to the Cayman Islands?”
2. Did you open a new bank account while you were in the Cayman Islands between June 15, 2006 and July 1, 2006?
3. If you answered “yes” to Interrogatory No. 2, how much money did you deposit into the new bank account?
4. If you answered “yes” to Interrogatory No. 2, what was the source of the funds that you deposited into the new bank account?

Interrogatories are useful discovery mechanisms that should be used in divorce, dissolution and separation cases if you have unanswered questions or you believe your husband is hiding something. In the event your husband fails to respond or provides insufficient answers to your Interrogatories, you may consider taking his deposition.

Depositions are sworn testimony taken under oath in the presence of a court reporter who records every question, answer and comment made by the deposition participants including but not limited to, a spouse, lawyer or expert. Videographers may also memorialize a deponent’s testimony using a video camera and audio equipment. Depositions are usually conducted in lawyers’ offices and can last a few hours or several days depending on the subject matter, participants’ temperaments and witnesses’ dispositions (i.e. uncooperative). Testimony given during a deposition may be used as evidence at trial to establish facts or challenge the credibility of a witness (i.e. prove that your husband is lying about his 2007 bonus).

Sample Deposition Questions:

1. Where were you on June 15, 2006?
2. What was the purpose of your June 15, 2006 trip to the Cayman Islands?
3. With whom did you travel?
4. Where did you stay?
5. Isn’t it true that you took a woman with you on your June 15, 2006 trip?
6. Isn’t it true that you purchased a diamond tennis bracelet while you were in the Cayman Islands on June 22, 2006?

It is common for husbands, wives, girlfriends, boyfriends, lay witnesses and expert witnesses to be deposed in adversarial divorces, dissolutions and separations. Depositions are expensive and are usually used as a discovery tool of last resort after Requests and Interrogatories, which are generally less expensive tools.

Choosing your Discovery Tools

The method and types of discovery useed in divorce, dissolution or legal separation depends on the facts and circumstances of a case. If your marriage was of short duration, did not involve the acquisition of any joint assets or debts, and you were fully aware of each other’s financial circumstances, you may not need to conduct any formal discovery. Releases and the informal exchange of information may be sufficient. If on the other hand you are a stay at home mom without any knowledge of your husband’s earnings or joint assets and debts, you probably need to conduct formal discovery before making any legally binding decisions in your case or proceeding to trial. If your husband is forthright and you are fairly confident that he is not hiding anything, Requests, Releases and Interrogatories may suffice. If you do not trust him because of his propensity for lying, you may need to use the arsenal of discovery tools available to you.

This article is not legal or financial advice. You should contact a lawyer, accountant and/or financial professional in your state to discuss the specifics or your case and applicable laws.