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Getting a Divorce: The Discovery Process

You have filed for divorce and the other party has been served and answered or has signed a waiver. You have either agreed to temporary orders or have had a hearing and the court has issued a ruling. Now it is time to do discovery to determine (1) the extent and value of the assets of the marital estate and (2) find out any information that may be helpful in deciding custody and support issues.

Discovery is the process where one party learns from the other party, information that is relevant to the lawsuit. Discovery can be done formally or informally. If it is done informally, the attorneys agree that the parties will exchange agreed upon information by a certain date. This avoids the time and expense of sending out formal discovery and having to prepare answers to the other party’s formal discovery. It is much less expensive than doing formal discovery. If the parties cannot agree, then one or both attorneys may send formal discovery requests to the opposing attorney. Formal discovery usually consists of interrogatories (questions about relevant issues), Requests for Production (asking for the production of documents, including bank records, tax returns, financial records, credit card statements, real estate and vehicle titles, etc.), and Requests for Disclosure (general information about any claims made in the other party’s pleadings). If it is necessary, one party may decide to take the other party’s deposition, which is sworn testimony done in a question and answer form before a court reporter. Because depositions are expensive, consideration must be given to whether the information that will likely be gained through this process is worth the cost of the deposition and whether the information can be acquired any other way.

If your attorney sends you discovery requests and instructions on how to answer the requests, it is imperative that you respond in a timely manner. There are time limits on each form of discovery, and failure to respond within those limits can cause serious problems down the line.

Discovery is important because it is impossible to resolve the issues that come up during a divorce without knowing the facts. Generally a major issue in a divorce case is the nature and value of property. It is important to know about all of the property the parties own and the value of that property. Discovery is one way to get that information. The parties will often prepare and exchange sworn inventories of property and debts. That helps them to evaluate the property and come up with ideas about how to divide it upon divorce. If there are children involved and the parties cannot agree on custody and/or support, you may also need to do discovery to determine who the better parent might be and what the assets of the non-custodial parent are, so the parties can set child support or, absent an agreement, ask the court to do so.

Authors

Valin L. Woodward

Author

After being licensed in 1979, Ms. Woodward’s practice for many years was primarily in the area of insurance defense and products liability, with experience in complex multi-district litigation an...

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