What is discovery during divorce?

Discovery is a common process that occurs in most divorces. The purpose is to gather information about each member of a couple so everyone clearly understands the financial elements of the marriage. Many different types of information are discoverable, including the following: All financial documents and records Employment records and information Text messages Receipts Criminal history Driving history

What are the types of discovery during divorce?

Before you enter the divorce discovery process, note that numerous types of discovery may occur during your process. The types of discovery that you should know about include the following: Formal disclosures Interrogatories Admission of facts Request for production Depositions Subpoenas

When does discovery occur?

The discovery process occurs during what's known as the pre-trial stage of a divorce. Along with identifying pieces of information that can later be used during the case, discovery helps lawyers learn more about the case. In turn, this helps them make their arguments if the case goes to trial. Discovery is almost always necessary during a divorce. Even if you and your spouse agree on the particulars of the divorce and how to divide assets, discovery can help both parties reach a fair and equitable resolution. Your lawyer will ultimately help you decide if discovery is necessary. If you don't want to go through the discovery process, there are ways to avoid it, which we detail later on this page.

Who initiates the discovery process?

Discovery begins almost immediately after you file for a divorce. Your attorney (or your spouse's attorney) initiates it. Even though ample information can be gathered during the discovery process, the timeline of this process can be very short or very lengthy. It hinges on how much you and your spouse cooperate. The discovery process can be relatively informal or highly rigid. In most cases, attorneys request information via formal disclosures which eventually include interrogatories, admission of facts, and requests for production. You will have a set number of days to answer these requests before depositions begin. A single deposition can take anywhere from 15 minutes to a few days. Subpoenas may also be issued at this time to obtain additional documents or depositions.

What should I ask for in discovery?

The divorce discovery process is designed to cover all documents and pieces of information that may prove relevant to the case. If the divorce is contentious, the documents you request could give you the information you need to prove your spouse is in the wrong. Your attorney will gather all the types of information mentioned previously. The necessary information will include everything from financial documents and retirement account details to bank and investment statements.

What if my spouse won't cooperate with discovery?

If your spouse ignores a discovery request or lies in one of their statements, they could face severe consequences. The same is true if you fail to be completely truthful during discovery. A judge could fine you or sentence you to jail. However, jail time is rare in these situations. Be honest with your attorney. If you don't provide them with all of the facts, they won't be able to properly protect your interests.

What are the pros and cons of going through divorce discovery?

Many find divorce discovery worth the extra time it takes to complete the process. Whether your divorce case moves to trial or settles before a trial, exchanging information with your spouse can help you reach a fair conclusion to the case. This stage of the divorce process may benefit you if your divorce is contentious. For example, if your spouse hides relevant documents from you, discovery can uncover them.

Can I avoid divorce discovery?

It's possible to avoid the divorce discovery process by reaching a settlement with your spouse during the mediation process. Mediation is more likely to succeed in an amicable divorce. A third-party mediator represents you and your spouse while you work out your differences and hopefully come to an agreement on everything, from spousal support to property division. Both parties must waive their right to discovery in this situation.

Who can help me with the divorce discovery process?

If you need help during the divorce discovery process, consider hiring a divorce lawyer. The lawyer will represent your case throughout every stage of the process and can submit requests for information. You can also contact us at Hello Divorce to speak more about divorce discovery and what it might mean for your case.

Divorce Discovery: What to Expect and How to Deal With It

by Hello Divorce Team

Jun 7, 2023 1:03:00 PM

Divorce Process, Divorce Finance, Financial Disclosures

Key facts about divorce discovery
What if my spouse won't cooperate?
Timeline and cost
Pros and cons
Can you avoid it?
Where to get help

Lawyers are storytellers. In court, they weave testimony, documents, and facts into a compelling case that benefits their clients. To do this work effectively, lawyers need data. The discovery process makes that possible.

During discovery, both sides gather information about the witnesses and evidence they’ll share during the trial. Everything one side compiles is shared with the other, so lawyers have a sneak peek at the case long before the judge calls the court to order.

What is divorce discovery?

Gathering research and sharing it are the two tasks completed during divorce discovery. The process helps your lawyer understand the strengths and weaknesses of your case. When you go to trial, your lawyer can use this data to help you get what you want.

Discovery happens long before the trial starts, and plenty of rules guide the process. For example, lawyers can use discovery to force the other side to give evidence that can be used to build their case. And no one can ignore discovery requests. Doing so could lead to stiff sentences and fines.

Since discovery is a legal process, your lawyer typically initiates it. As soon as you file for divorce and hire your lawyer, the work begins.

The timeframe can vary depending on the following:

Complexity: High-conflict divorces with plenty of assets require more discovery than simple cases.
Collaboration: When two sides work together, the process moves faster.
Urgency: Some legal teams use delay tactics during discovery, ensuring the process moves very slowly.

Your lawyer will ask for all documents and data relevant to your divorce case. Anything you think could help you explain your side is fair game during discovery.

It’s common for lawyers to ask for bank statements, credit card bills, and home assessments. But your lawyer might also ask for witness statements or expert opinions, too.

Key facts about divorce discovery

Discovery is part of a contested divorce that goes to trial. About 90% of divorces are uncontested, meaning they never involve entering a courtroom.

Divorces are considered civil cases. Of all civil cases, more than 60% concluded by trial involve alleged injury, loss, or damage by others.

Divorce discovery can take a considerable amount of time to complete. In Utah, for example, people have 28 days to respond to a request for documents during discovery.

The median cost of a divorce is $7,000, but contested divorces in court can cost $20,000 or more.

What does the divorce discovery process look like?

Soon after you file for divorce, your lawyer and your spouse's lawyer begin exchanging information and gathering data. Every case is a little different, but most involve these steps:

1. Formal disclosures

In most states, couples must fill out financial paperwork independently and share it with one another. While you likely shared assets and debts during your marriage, you must both outline what you have and owe. Your lawyers can look for inconsistencies in these documents and dig deeper to build your case.

2. Interrogatories

Written questions comprise the second step. Your spouse's lawyer compiles a series of questions involving your background, assets, income, retirement accounts, and more. You answer these questions in writing with the assistance of your lawyer.

3. Notice to produce

Your lawyer determines what bits of data might be missing (such as a home appraisal, recorded statements made by others, or key email messages) and asks the other party to provide them for the case.

4. Confirmation

During the Admission of Facts stage, your spouse's lawyer provides a series of statements that you must confirm or deny. You'll send a similar request to your spouse. Your lawyer will help you answer carefully, as these statements are hard to retract once they're given.

5. Subpoenas

Both lawyers compile lists of people or entities that have information relating to your marriage. Some subpoenas require people to testify at trial or in a deposition. Others ask the person or organization to provide some kind of document or proof.

6. Depositions

Witnesses, including both you and your spouse, head to a lawyer’s office to give a statement on the record. A court reporter keeps track of everything you say, and those recordings are shared with the other party.

A deposition doesn’t always negate your need to speak at trial. Sometimes, lawyers use these opportunities to catch a lie. If you answer one way in a deposition and another at trial, this could be an excellent follow-up question.

Our agreement checklist keeps things in order.

See what most people include in their Settlement Agreements with our free download.

What happens if my spouse won’t cooperate with discovery?

In some types of divorces, spouses can refuse to answer questions or participate in the process. A discovery is different.

Discovery is a legal process managed by lawyers. Your spouse can't opt out of these steps or refuse to participate in them. Your spouse's lawyer will handle all the details.

How long does discovery last and cost?

Lawyers need plenty of time to prepare cases, and discovery can drag on even in simple cases. Many states give people weeks to respond to requests, and scheduling demands can make getting statements and depositions tough. Expect to spend several weeks or months in discovery.

Since lawyers charge by the hour and do most of their work during discovery, this can be one of the most expensive phases of a divorce managed by the court system.

Pros and cons of divorce discovery

The discovery process can be incredibly helpful for your lawyer. When it's complete, your legal team will have a clear understanding of your marriage and a coherent strategy for defending your case in court.

But discovery can be long, expensive, and stressful. Each time the other party asks for a document, witness, or piece of evidence, your lawyer must find it. Some spouses barrage their former partner with requests, knowing they're inflicting harm in the process.

Can you avoid divorce discovery?

No court case can move forward without discovery. It’s a foundational part of how courts work. If you’re relying on a judge to end your marriage, you must participate in discovery.

But you could collaborate with your partner to end your marriage out of court. You could also use discovery to entice your partner to settle your differences, so you can end your marriage without a court date.

Where to go for help

You can't tackle the discovery process without a lawyer. This is a legal process that's initiated by one lawyer and completed by your spouse's lawyer.

If you want to work with your partner outside of the courtroom to end your marriage, you can ask for documents and proof. But without a lawyer, you can't force the other side to tell you the truth or participate in your research process.

Divorce discovery glossary of terms

These are some of the common terms used throughout the discovery process:

Admission of facts: These are statements sent from one spouse to another for approval or denial.
Deposition: This is witness testimony (or statements) given under oath.
Discovery: This involves gathering information and documents relevant to the case and sharing them with the other party.
Financial disclosure: This involves sharing information about your bank accounts and estate. Typically, this is part of the discovery process.
Interrogatory: These are questions regarding finances and the marriage that both spouses must answer in writing under oath.
Mediation: Both spouses meet with an impartial third-party mediator to resolve differences.
Notice to produce: This is a formal request from an attorney to provide a document for the divorce case.
Subpoena: This is a formal requirement to appear in court or submit a document.

References

How Courts Work. (November 2021). American Bar Association.
Discovery. Cornell Law School.
What Is an Uncontested Divorce? (July 2022). Forbes.
Courts. (February 2021). Bureau of Justice Statistics.
Disclosure and Discovery. Utah State Courts.
How Much Does a Divorce Cost in 2023? (July 2022). Forbes.
How Courts Work. (November 2021). American Bar Association.

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Divorce Discovery: What to Expect and How to Deal With It

What is divorce discovery?

Key facts about divorce discovery