Discovery

Central to a typical contested divorce is the issue of discovery. Discovery can be broadly defined as the acquisition of certain facts. In a litigated matter, discovery is the process by which certain facts are gathered.

After a divorce complaint is filed, but before the actual trial takes place, there is a discovery period during which the parties are to gather facts about the other party. Discovery requests are sent to the other party demanding that interrogatories (questions that demand sworn answers) be answered and that certain documents are produced. Information is then ascertained to determine how the divorce should be finalized. For example, in discovery, a party’s retirement account must be disclosed to the other side. Upon the disclosure, it will be determined what portion, if any, is subject to equitable distribution and thus divisible to the other party.

Another more intense form of discovery is the deposition. At a deposition, the party or other witness is sworn in to testify before a court reporter. The attorney asks that person questions, and their responses are recorded by the court reporter and eventually a sworn transcript is produced. The transcript can be used to cross-examine the witness at trial. If the witness testifies to something differently at the deposition and at trial, that could be used as a way to show that they are less than honest. Therefore, a deposition is a great way to pin down a person’s testimony at trial. Without a deposition, you may not know what that party or witness will say.

The purpose of discovery is so that each party is on equal footing at trial and that the end result of the case is fair and equitable under the circumstances. That is why it is important that the other side cooperate with discovery. If they do not, there are other ways to gather information. Subpoenas can be sent out to different people or companies that are holding the information you are looking for. This will require them to release the information to you. For example, if you need bank statements, you can subpoena the opposing party’s bank to give those statements over to you. Another way to force discovery is to file a motion with the Court so that the judge will order your adversary to turn over the requested discovery. If they do not, the judge can strike their pleadings resulting in a default, an award of counsel fees or possibly impose a sanction.

If you are in a contested divorce that requires extensive discovery, it is important that you speak with your lawyer in detail about what items are needed. A strong discovery plan is the best way to achieve the optimal result for you in your given situation.