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Discovery
The Discovery Process in a Family Law Case

In every family law case, your lawyer, and the lawyer for the other side, need to obtain the information necessary to assess the merits of the case, to prepare for settlement negotiations, and, if necessary, to prepare for trial. The exchange of information is called “discovery.” This typically includes a “request for production” of documents. In a divorce, this written request will generally ask for the production of financial documents about the nature, source, and extent of each party’s property, whether it was acquired during the marriage or before the marriage, as well as information about debts and income. If child custody or parenting time is at issue, sometimes lawyers will ask for school records, diaries, and other information about your children. Requests for production can be tedious to respond to, because lawyers may ask for documents going back several years. If you or your spouse has a business, the request will usually ask for a large volume of financial documents relating to the business.

Each party to a divorce or other family law dispute has a legal obligation to provide information that the other side asks for, subject to certain limitations. In a divorce, if a party fails to disclose a significant asset that existed at the time of the divorce, the divorce case may be reopened, or in some cases, set aside. Many of the documents you provide, or the other side produces, may become part of the evidence the court considers at any hearings in your case. In every family law and divorce case, as part of the discovery process, either your lawyer or the other side’s lawyer may ask for a “deposition,” which will take place in the presence of a court reporter. The person being deposed will be sworn in by a court reporter, and will answer all questions under oath. You, your spouse, and other people who have information about your case may be deposed.

The main purposes of a deposition are as follows: (1) to gather facts about the case; (2) to assess how well the deponent would likely perform as witness if the case went to trial; and (3) to ensure that important questions are asked under oath. If there is a trial, and the deponent answers a question in a substantially different way than he or she did at deposition, the trial court will likely question whether the deponent is truthful.

Depositions can become expensive because both parties are represented by attorneys. A court reporter will make a record of everything the deponent says. If the deposition is “transcribed” into a written document, the court reporter will likely charge by the page for the transcription.

Sometimes, you or the other side’s lawyer may ask for additional information in a document called “requests for admissions.” These are in the form of statements of fact, which must be either admitted or denied. If the statement is admitted, that eliminates the need for further proof on that issue.

For example, in a divorce, the wife’s lawyer might make send the husband these requests for admission:

  1. “1. The only bank accounts I own are held at Bank of America, and consist of a checking account ending on numbers 2333, and a savings account ending on numbers 5555.
  2. “2. I have not owned any other bank accounts, or had any interest in any other bank accounts, since 2010.”

If the husband answered “yes” to each question, and it was later learned that he owned other bank accounts at the time of the request, there would likely be consequences for the husband.

Another common discovery tool is a “subpoena,” which is used to obtain records that may help your case, but which the other side will not or cannot produce. The most common examples of this are subpoenas seeking bank records, credit card records, and information from an employer.

There are a number of legal rules to help ensure that both sides comply with appropriate discovery requests. For example, the court may order one party to produce documents he or she should reasonably have access to. If that happens, the party who did not comply with the discovery requests may have to pay a part of the other side’s attorney fees. Under certain circumstances, the court may order a wide range of sanctions against a party who continually does not comply with reasonable discovery requests.

Peter is fluent in all aspects of discovery. Peter recently authored a chapter in a widely circulated family law handbook about the discovery process. Peter will work with you to efficiently get through this process, and will help protect your interests by working to obtain necessary discovery from the other side, and, if necessary, from third persons.

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