What is Discovery?
After the divorce has been initiated with the divorce papers being served by one spouse and the response filed by the other, the process of discovery will begin. This is a process of information exchange, where both parties will provide factual information to each other about their individual financial positions, such as their income, assets and debts.
Through this discovery process, both sides through their attorneys and the court can evaluate how the community property must be divided between the two, and how to determine the payments for alimony and child support. In Orange County, the divorcing couple has the option to conduct discovery through an informal document and information exchange, or they may choose a more rigid and formal process.
Discovery may be conducted using various methods, including interrogatories, depositions, disclosure, requests for production, and admission of facts. Every discovery method has its own purpose, but they are all strategically interrelated. Depending on your situation, your divorce attorney may recommend you to follow a more informal discovery process to save on time and costs.
Tips for a Successful Divorce Discovery
You should keep the following three tips in mind, which will make the divorce process more effective:
- Remember that during the discovery process, there is always a chance that almost all the pertinent facts will eventually come out. If you are going through a high conflict divorce case where emotions are charged up, this is even more likely to happen.
- Be completely transparent and forthcoming with your divorce lawyer about the facts of your case. If you hide vital facts or documents from your attorney, you will be at a disadvantage if things come out during discovery.
- Be truthful throughout the discovery process. Trying to mislead the legal system is self-defeating, and you will hurt your own case if any lies are exposed during discovery or it is found that you were attempting hide some assets.
Important Elements in a Discovery
California family law requires the divorcing couples to disclose all facts about their income, assets and debts, including:
- Property deeds and titles
- Bank statements, including statements of any offshore accounts
- Statements related to various investments
- Proof of community property valuation
- Proof of personal property valuation
- Financial statements related to business, if any
- Insurance payouts, if any
You are required to disclose the details about individual and marital debts as well. These may include mortgage, promissory notes, liens, and credit card statements. If kids are involved, you will have to disclose pertinent information about their care. If you plan to call upon witnesses or expert testimonies, you will need to disclose it. If either party fails to make full disclosure, the other party may ask the court to impose a penalty.
In simple words, an interrogatory is a question. You and your spouse are usually required to answer the interrogatories, whether they are put forward by the other party’s attorney or your own. Interrogatories typically involve questions related to assets, debts and income. An attorney may also use an interrogatory to obtain information about your work experience, academic qualifications, and current and previous income so that a claim for spousal support can be determined.
A special interrogatory will include a customized question by an attorney. Alternatively, it may be framed using a legal form. This form can include questions related to claims for credits, claims for reimbursement, and any alleged agreements made in the past between spouses about property division or alimony.
Using an interrogatory, your lawyer can precisely try to understand what the other party is demanding and what arguments do they have to back their claims. You can only use a limited number of interrogatories (the limit in California is 35). Therefore, your divorce attorney should have the experience to frame sharp and incisive questions to draw out maximum possible information from the other party through this process.
Request for Admission
If you receive a request from admission from the other party at any point during the discovery process, it means that they want you to deny or admit under oath the truth of a statement. Upon admission, the statement will be treated as true for all purposes during the case. You or the other party may also utilize a request for admission to verify that a particular document is authentic.
Admission of a fact from the other side means that you will not have to prove it during the divorce trial. However, in case of their denial, you will have to prove the fact. If the other party falsely denies a fact and you are able to prove it in court, your divorce attorney may be able to convince the judge to impose a penalty (such as the other party should pay your lawyer’s fee because of the time and effort you invested in proving the fact.)
If you or the other party fails to give any response to a request for admission, the court will assume that the answerable party has admitted to it.
Request for Production
If some of the documents were not a part of the disclosure, or you want some documents because you want to track potential hidden assets, you may use a request for production. The additional documents that you ask for you through this method should identify the items you want to review and describe the document by category. Examples of items for Request for Production include:
- Documents which an expert witness you plan to use relied on to form their professional opinion.
- All signed, recorded, and written statements of both parties to the divorce, investigators, witnesses, family, or friends of the parties related to the divorce.
- All emails, surveys, audio and video recordings, photos or other types of information means related to the divorce.
- Documents obtained following a request of subpoena from any of the parties.
Documents are often the most critical source of verifiable information in divorce cases. For instance, a review of the bank statements may not only shed light on income and expenditure, but also lifestyle. In divorce cases, these documents are often in control of only one spouse and your attorney should have the skill and focus to make sure you get full access to them.
Although written replies in a discovery provide valuable information, the opposing side’s lawyer may have sanitized the submissions. But in deposition, you get an opportunity to get more valuable insights beyond the paperwork because you have a chance to ask follow-up questions in real time. Through a deposition you will also know how the same person is likely to perform in court.
Talk to a Knowledgeable Divorce Lawyer about Discovery
Discovery can be an exhausting process, and some elements of it can give you stress. However, if you have a competent Orange County family law attorney by your side, they will help you accomplish the discovery process smoothly and to your maximum financial advantage. A dedicated lawyer will also use discovery to expedite your divorce process by spotting problems before they become unmanageable.