Discovery is not the step most often talked about between lawyer and client during the divorce process. However, it can be among the most important steps. Discovery occurs prior to the trial of your case and is a process used by each party to request and obtain evidence relevant to the divorce case from the other party or from third parties. The lawyer’s goal is to secure information that is needed to properly analyze all the issues in the divorce and prepare the case for settlement negotiations or trial. A client will often complain that the discovery process is tedious and invasive because of the need for the attorneys to obtain a lot of detailed information. However, the results can provide great insight into the issues in your divorce.
There are several types of discovery available in your lawyer’s toolbox to obtain the information needed for your case. Here is a list of the most common types of discovery used in a divorce case:
These are written questions submitted by one spouse to the other that must be answered under oath.
Requests for Production of Documents
These are written requests submitted by one spouse to the other that request certain documents be provided or produced for inspection.
This is where the person being deposed answers questions posed to him or her by one of the attorneys under oath in the presence of a court reporter. However, the judge assigned to the case is not present. The court reporter takes everything said down and prepares a transcript that can be used at trial.
Subpoena Duces Tecum
The subpoena is issued by the clerk of court where your case is filed and served upon a person or business entity from whom documents are requested. The subpoena commands the recipient to appear at a particular date and time and produce the documents requested in the subpoena.
Request for Admissions
These are written statements submitted by one spouse to the other spouse that must be admitted or denied.
Request for Entry Upon Land for Inspection
These are similar to a Request for Production of Documents but allow the submitting spouse to gain access to specified property so that he or she may inspect, photograph, appraise, etc. the property itself or other items located on the property.
Keep in mind that your divorce case is unique and there will be many factors considered by your lawyer in determining what discovery is needed. Your lawyer will most likely consider the following factors:
- What are the specific issues in dispute?
- How much access do you have to obtain the information or documents needed?
- How cooperative is the opposing attorney?
- Will the opposing attorney voluntarily exchange the documents needed?
- Does the attorney believe that he or she has received everything needed?
- How much money is the client willing to spend for performing discovery?
Generally, your lawyer will talk to you about the types and extent of discovery needed for your case.
The discovery phase of your divorce case can take anywhere from a few weeks to several months depending on how much information is needed for your case. The process can take longer if one or more expert witnesses are involved in the case. Under the Missouri Rules of Civil Procedure, the interrogatories, request for production of documents, and request for admissions described above must be responded to within thirty days. However, you have a duty to supplement your answers to this discovery in a timely manner should a prior answer or response no longer be accurate. The most common supplemental response is an expert interrogatory that asks for the identity of your retained expert witness. You may not have retained an expert at the time the interrogatory was originally answered but decided to retain an expert later in the case.
Divorce cases are unique when it comes to discovery. In a divorce, the case is affected by past, present, and future events. Financial accounts can have fluctuating balances. If you and your spouse are employed, salaries can change, commissions or bonuses can be paid, and benefits can be offered to you by your employer while the case is pending. Your lawyer must obtain relevant past statements, current statements, and possible pension or deferred compensation statements that will be paid in the future to maintain the most accurate financial picture for you and your spouse.
The discovery process can be critical to a successful result in your divorce case. Don’t let the potential time and money spent be the deciding factors of whether discovery should be completed in your case. Consider the fact that discovery can greatly increase the likelihood that any settlement reached in your case will be based on accurate information. Consider that discovery provides you access to documents and answers to questions necessary to make a fully informed decision regarding whether you should settle or proceed to trial. Consider that documents obtained during discovery can be used at trial. Consider that discovery may prevent the element of surprise at trial by your spouse or a third-party witness. Consider that discovery will help your lawyer obtain all the information that he or she will need to represent you to the best of his or her ability in court. If you are concerned about why your attorney is doing certain discovery, call and discuss your concerns so you can feel comfortable with the decision. Your lawyer will explain why discovery is being done on your behalf, how it is tailored to the specific needs of your case, and how the fees being incurred are an investment to the goals of your case.
Hopefully, the discovery process can help you more successfully navigate the divorce landscape and avoid making uninformed decisions in your divorce case. Should you need the advice of an experienced divorce attorney or have questions or concerns about your situation, know that we are here to help and willing to discuss those issues with you.