“Discovery” is a legal term that refers to a method by which both parties exchange information. There are two ways of collecting and requesting information.
The first method is called “formal discovery.” Interrogatories (questions regarding custody, child support, income, resources, real estate, etc.), Requests for Production of Documents (request for tax returns, etc.) and Requests for Admissions (asking the other party to either admit or deny a statement) are all examples of formal discovery. The advantage of formal discovery is that the other party, by rule, needs to provide the answers or requested documents within thirty (30) days of the date of the request. Formal discovery can also be extremely helpful in areas where one spouse may be trying to hide financial information or is not forthcoming when it comes to providing financial information to the other spouse. It is also a helpful tool when determining the income of a self-employed individual or a business owner.
Another example of formal discovery is a deposition where the attorney can depose a spouse. At a deposition, a Court Reporter is present who takes down the questions and answers in a verbatim fashion. The witness is under oath. The deponent’s testimony can be used later at trial if the deposition answer is different at trial. This also provides an opportunity to ask some questions to a deponent that could not have been asked in the same detail through writing or other discovery methods. The disadvantage of conducting formal discovery is that it is expensive and most of the time, if one spouse serves the other spouse with formal discovery requests, it is highly likely that the other party will also request information through formal discovery.
The second method of collecting information is “informal discovery” whereby the parties exchange financial information or other pertinent relevant information through oral request or simple correspondence. For example, tax returns, pension statements, or 401(k) plan statements can be provided via regular mail. The advantage of this process is that it is inexpensive compared to “formal discovery.”
The disadvantage of such a process may be that if a party wants to hide information, they could attempt to do so by not providing this information. Therefore, whether or not to conduct formal or informal discovery is a very important decision and involves careful analysis on the part of both the client and the lawyer. Even if informal discovery is conducted, it is a good idea to obtain a “Sworn Statement of Assets and Liabilities” so that in the event that something is later discovered, this document can be used to show the Court that the asset, debt or income was not included in the Divorce Decree.
Discovery is an important tool
Discovery is a very important tool in a Divorce proceeding as it paves the way for a settlement or strategy at trial. Both spouses must have the same information and need to agree on values, assets, liabilities, etc. to have a meaningful settlement discussion or engage in meaningful Alternative Dispute Resolution mechanisms.