Discovery Process

Posted: 30 June, 2022

You’re going through a contested divorce.  You participated in mediation at the Family Mediation Center, and you attended the Case Management Conference hearing.  Since you and your spouse don’t agree on the terms of your divorce, the Judge set a Trial date and “discovery” deadlines.

What is discovery?  What information is discoverable?  What are the methods of discovery?  What if the other party fails to respond to or cooperate with discovery?

What Is Discovery?

Discovery is the formal process by which parties request and exchange information and evidence in preparation for Trial.  Discovery is the longest and most important phase in the contested divorce process.  It is governed by a special set of rules and deadlines.

What Information Is Discoverable?

In general, parties may obtain discovery regarding any unprivileged and relevant matter which “appears reasonably calculated to lead to the discovery of admissible evidence.” (This is quite broad!)

What Are The Methods Of Discovery?

Within 30 days after service of the Complaint For Divorce, either party may obtain discovery by one or more of the following methods:

  • Interrogatories – a limited number of written questions which must be answered in writing and under oath;
  • Requests For Production Of Documents – written requests to produce documents, electronically stored information, and other designated tangible things in the responding party’s possession or control;
  • Requests For Admission – a limited number of written requests to admit the truth of designated matters;
  • Depositions – questioning of a potential witness, under oath and in the presence of the parties, their attorneys, and a court reporter who transcribes the questions and answers;
  • Requests To Permit Entry Onto Designated Land Or Property – written requests for permission to enter and inspect designated land or property in the responding party’s possession or control; and
  • Orders For Physical And Mental Examination Of Persons – court orders requiring a party to submit to a physical or mental examination by a licensed or certified examiner at a specific time.

Interrogatories, requests for production of documents, and requests for admission are the most common methods of discovery in any contested divorce.  A common form of evidence is texts, emails and social media posts.  Depositions and orders for physical and mental examination are also frequently used, but are usually quite costly.

What If The Other Party Fails To Respond To Or Cooperate With Discovery?

Absent a court order to the contrary, each party is obligated to timely respond to discovery requests and to generally cooperate with the discovery process.

If a party fails to timely respond or cooperate with discovery, then the party requesting the discovery may file a motion for resolution and for the imposition of sanctions.

Sanctions can be imposed against the responding party, their attorney, or both, and may include: civil contempt; an order requiring discovery responses by a certain date; an order deeming matters admitted; an award of reasonable attorney fees and costs; and any other sanction the court deems just and proper.

Conclusion

Discovery – the most time-consuming and critical phase in the contested divorce process – is the formal procedure by which evidence is gathered to support claims and defenses at Trial.  A carefully timed and strategized discovery plan is critical in any contested divorce.

It is equally critical to timely and adequately respond to discovery requests.  Failure to do so may subject a party to sanctions and seriously compromise his or her case.

The strength of a party’s case at Trial will largely depend on the quality of evidence he or she gathered and exchanged during discovery.

Don’t risk handling the discovery process on your own.  Call our experienced Divorce and Child Custody attorneys today.