After the initial filing of divorce papers, there is an exchange of information between spouses (this is the “discovery process”), concerning their individual economic, financial, and personal situations. This includes the extent of their property ownership, debt, and income. This is to enable the couple and their attorneys to begin formulating an equitable division of property and deal with issues such as child support and alimony. The process of discovery can be informal in nature or follow rigid guidelines.
In the more formal process, the first step is document production, during which both spouses provide all documents that relate to the divorce, the marriage, their separate property, incomes, etc. Either spouse has a right to see nearly all documents that even arguably are related to the divorce and any issues that will require resolution. This includes the division of property, finances, and debt, child custody and visitation, payment and receipt of child support, and payment and receipt alimony.
The second step is interrogatories and requests for admissions, which involves questions that require the spouse’s version of the facts and support for his or her claims. In some cases, these questions are provided as a pre-printed form, or specific questions just for your case, called “special” interrogatories, can be provided. Questions are general (“Describe your current relationship with your children”) or quite specific (“Is it your position that respondent’s taxable income for 2004 was $45,000?”). An attorney can help you determine how to respond if questions are unfair or difficult to understand, and also decide if you object to them. While “requests for admission” are generally not used in divorce cases, they can be very powerful tools. They involve asking a party to confirm or deny certain facts regarding the divorce and related issues, and they carry with them penalties for not answering, for answering falsely, or even for answering late.
Depositions are the next step in discovery. They are statements made under oath, in response to questions from an attorney, while a court reporter makes a transcript of all that is said. They can last only an hour or up to a week, and rarely, even longer. There are two primary reasons for depositions. The first is to see what the other side has; the second, to do a “practice trial,” and see how witnesses will appear and conduct themselves before a judge or jury.
Your attorney will tell you how to act and answer at the deposition, but there are two general rules to remember. The first is never to guess the answer; the purpose of a deposition is to give facts, not speculation. In many cases, “I don’t know” is an acceptable answer. The second thing is that while you may want to explain your answer so that your listener better explains to you, you should not do this. Your job is only to answer the question that is asked.
Here are some final points about discovery:
- It is common that anything and everything comes out during discovery, especially during divorce, because they can become hostile when emotions run high.
- Honesty with your attorney is essential. Tell him or her everything. If you do not, protecting you becomes exponentially more difficult.
- Honesty during the discovery is also essential. Lying during the discovery and getting caught will significantly compromise your position.