Understanding the Discovery Stage of Divorce
Divorce can be a stressful and tedious process, but if you know what to expect, you have the opportunity to get through it with minimal anguish. In a “no-fault,” or uncontested case, couples agree on elements including property division, child support, spousal maintenance, and child custody. Couples that are able to come to an agreement on their own can swiftly file a divorce decree that can be finalized with the court in as little as sixty days.
However, when divorces are contested – meaning that the two spouses cannot come to terms on an agreement about spousal support, child support, custody, or other elements – the whole process must be expanded to include the main elements of litigation. The Texas divorce process can be divided into three distinct phases; pre-trial, discovery, and litigation. The pre-trial phase is limited to the decision to get a divorce. This can be over a period of time, or it can come out of the blue.
A contested divorce is often lengthy and costly. This is largely due to the “discovery process,” which is the period in any lawsuit dedicated to compiling information about the other party so that you are able to make informed decisions on how to proceed. Like any legal case, the discovery process exists so that each side can learn what they are dealing with in terms of an upcoming trial. In the context of a divorce, the types of information you are looking for will include income information, bank account information, investment information, property records, and other types of asset information. There are four elements of discovery: interrogatories, admissions, production, and depositions.
Interrogatories are a list of questions that will be drafted by your legal team and then sent to your spouse. They will have a specific period of time to respond in writing to your questions. They will likely send you a set of interrogatories to answer as well. The first round of interrogatories can be exploratory, allowing your legal team to gain a better picture of your spouse’s assets, which can set the overall tone of your case. There are usually multiple rounds of interrogatories, and with each, your legal team will glean more information about the income and assets that are crucial to your case.
Admissions are similar to interrogatories. Your lawyer will send your spouse statements that they must admit or deny. Admissions responses tend to come in the form of a yes or no answer, unlike the open-ended questions in interrogatories. Admissions are rarer in divorce proceedings, but they can come up.
Production is the portion of the discovery process where you request documents pertinent to your divorce. These can include bank statements, credit card statements, tax returns, real property records, photographs, receipts, medical records, and more. Anything even arguably related to your divorce can be requested during the production process. These documents are usually used to support the responses given in the interrogatories and admissions.
Your spouse and opposing counsel can delay the interrogatories, admissions, and production processes by answering each round as late as possible without exceeding their deadline. They can also intentionally slow the process by providing the bare minimum information requested, requiring more rounds of discovery to delve deeper. Your spouse can also go in the opposite direction and provide so much information as to overload your legal team with paperwork review. If any of these tactics seem intentionally aggressive, your legal team may petition the court for an order that will require your spouse to comply.
Depositions can be similar types of questions posed in the interrogatories, but they are asked orally and in person. Both sides are present for depositions and a complete written transcript of the deposition will be provided to both parties. Each side is allowed a period to ask questions. Depositions can be lengthy and very costly because they are in person and generally require multiple parties – at least lawyers from both sides – to be present. Each spouse will be “deposed” in this process, as well as other parties who may have information about assets or knowledge about the circumstances surrounding the divorce. These other parties can include accountants, financial managers, and family members who can provide insight into parenting capabilities.
Problems during the discovery phase arise most frequently when the other spouse does not have legal representation. Contested divorces are argumentative by nature, and when your spouse is unrepresented, they may ignore legal rules and conventions. This means that you and your legal team are at the whim of an unrepresented party who will often act out of anger and frustration in their responses. This situation absolutely calls for a court order to require compliance with discovery requests, and can even lead to the court strongly recommending – or even requiring – the other spouse to retain legal counsel.
What is the point of the discovery process?
The ultimate goal during the discovery process is to provide your legal team with the ability to completely and accurately present the facts of your divorce to the judge. Well-prepared legal teams will spend a large amount of time on discovery so that no surprises come up in court. Spending a large amount of time on discovery can be costly, but necessary in preparation for a successful trial.
If your legal team is comprehensive in the preparation of your case during the discovery phase, you can go into settlement or a trial with a position of strength. Based on how well your legal team prepares your case during the discovery phase, opposing counsel or your spouse may decide to settle out of court. While enduring a contested divorce, a settlement can ultimately save money. If you do proceed to trial, a thorough discovery process will provide the structure for your case with a well-prepared legal team and a distinct advantage in court.
If you have more questions regarding the discovery process or any other part of a divorce proceeding, you can contact The Maynard Law Firm, PLLC. Our mission is to protect Fort Worth families, and we are available to review your case and provide legal advice at any time. Call us today at (817) 335-9600 or contact us online.