Formal Discovery

The purpose of formal discovery

1) to help ensure full financial disclosure by each party

2) to allow for more detailed fact-finding and evidence gathering

3) to narrow certain issues in the case

4) to facilitate settlement negotiations and/or prepare for mediation

5) to help build your case in preparation for trial.

The various discovery methods utilized

Interrogatories

Interrogatories are written questions that one party sends to the other party to answer. The receiving party must respond to these questions in writing, under oath, within a specified time frame (typically 30 days). Under certain circumstances the attorney representing the party receiving the interrogatories, can object to particular interrogatories. However, and to the surprise of many clients, most anything about you or otherwise involved in your marriage or divorce (a very wide net) can be asked.

• Examples of Interrogatory Questions:

  • List all sources of income during your marriage.

  • Have you ever had sexual relations of any kind with anyone outside of your marriage? If so, please provide the name and contact information of said person.

  • For the last 24 months, list all people who have provided childcare for your child other than you or your spouse.

  • Are you on any prescription medications? If so, what medication, what is the dosage and reason for taking.

Requests for Production of Documents

Request for Production of Documents (RPDs) involves requesting, in writing, that the other party produce specific documents relevant to the case. RPDs can also be sent to other relevant witnesses or entities (banks, employer. Documents requests are not limited to financial matters. The can also include personal documents like copies of your emails, text messages, social media pages, etc.

• Examples of Document Requests:

  • Bank statements for the past three years.

  • Credit card statements for the last three years.

  • Insurance policies.

  • Cell phone records

Requests for Admissions

Requests for Admissions are statements made in writing by one party that are sent to the other party, who must admit or deny the statement in writing. This can simplify trial by establishing certain facts as true, so they do not need to be proven in court.

• Examples of Admission Requests:

  • Admit that you own a specific piece of property.

  • Admit that you have a bank account at a particular bank.

  • Admit that you had sexual relations with someone other than your spouse during your marriage.

d. Depositions

Depositions are formal, out-of-court proceedings, which are typically held at an attorney’s office (usually the attorney of the client being deposed (“the deponent”)). Both parties and their respective attorneys are typically present at depositions, and have the right to attend. During a deposition, an attorney for one party will directly ask the other party (or other relevant witness being deposed) certain questions that must be answered under oath. A court reporter transcribes the entirety of the proceeding including all questions asked and all responses given by the witness. This creates an official record of the witness’s testimony, which can be used for various purposes including an attorney’s preparation for trial.

• Examples of Topics Covered in Depositions:

  • Questions about income and employment.

  • Details about parenting responsibilities and child care arrangements during the marriage.

  • Detailed questions about certain assets and debts.

  • Questions about alleged affairs or other offensive behavior that took place during the marriage.

e. Subpoenas for Documents

A subpoena for the production of documents is a legal order issued to a third party requesting certain documents, which the third party is then required to produce. Sometimes it’s easier to go directly to the source rather than trying to obtain certain documents from the other party. Subpoenas are typically used when a party has not been forthcoming or fails to provide all of the documents requested. Subpoenas are also a good resource if you suspect there may be additional accounts or assets that have not been disclosed by your spouse. Generally, the deadline for a third party to produce documents in response to a subpoena is sooner than the deadline required to respond to RPDs (addressed above), which can be helpful if you need the documents quickly.

• Examples of Entities Subpoenaed in a Divorce Case:

  • Banks and Financial Institutions

  • Employers

  • Credit Card Companies

  • A Child’s School or Child Care Services Provider

f. Hiring Expert Witnesses

In some cases, expert witnesses may be needed to provide specialized knowledge or professional calculations. These may include forensic accounts, property appraisers, behavioral specialists, and psychologists. Experts can be deposed by either party and may testify at a trial or hearing.