Dealing with Discovery in Divorce
Resolving a divorce requires a lot of information. The process of exchanging information and documents is formally known as “discovery.” Our courts have issued rules that litigants must follow when requesting discovery and responding those requests. The discovery rules include deadlines for answering requests and procedures for resolving conflicts when litigants do not produce all that is asked of them. Discovery can be a major headache for divorcing spouses. No one has the time and energy to locate and organize hundreds of pages of documents, or answer dozens of questions, but it can be a crucial step in the divorce process. Here are my tips for divorcing spouses who are facing a discovery request:
- Don’t wait. When facing any large task, it is tempting to procrastinate, but waiting only adds to the mental pressure. Generally speaking, most discovery requests must be answered within thirty days. The answer must be formatted by your lawyer to comply with the procedural rules, so in actuality, you should provide the information and documents to your lawyer in less than thirty days. Start by reading the request from beginning to end, considering whether you have the information and documents to answer each question. Make a note of the information that you need to gather from storage, accountants, financial institutions, or other sources. Contact those sources early so that they will have an opportunity to obtain the information and documents that you will need.
- Understand the objections. When answering a discovery request, the rules allow respondents to raise objections to some of the requests if appropriate. Generally, the objections falls into three major categories: (a) the request is too broad or remote; (b) the information is privileged or irrelevant; or (c) the information is unavailable. Communicate your objections to your lawyer upon your initial review of the request, so that your lawyer can frame your objections in a legally-recognized way or explain why you may have to answer some requests that you object to.
- Share the information. It may be time-consuming to answer questions thoroughly and gather documents, but it is worthwhile. If you litigate the case, then your lawyer will need information and documents as evidence in court; and if you do not produce the documents and information that your spouse has requested in discovery, you cannot use it yourself in court. Even if you settle your case, the discovery documents and information will be useful. Settlements generally require “full and fair disclosure,” which means informed consent. If you have not exchanged information and documents in discovery, your spouse might be able to challenge the validity of your settlement later, due to lack of full and fair disclosure.
Discovery is one of the most significant mileposts on the journey to resolution of a divorce. Without complete, accurate information, it is nearly impossible to settle or litigate child support, division of marital property, or other financial issues in divorce. Information is not useful if it is locked in your head. Share it with others through discovery.