What is the Discovery Process in Divorce?

Divorce concept. Law and Justice background. Judge gavel on with two golden wedding rings

When a marriage ends, assets and property that were accumulated during the marriage must be divided in divorce. As part of the divorce proceedings, each party is allowed to conduct discovery into existing finances to ensure transparency and fairness. The discovery process in divorce allows spouses to gather relevant information in the case in order to make informed decisions about each other’s assets, debts, and property.

What is Discovery in Divorce?

Discovery is the stage of a divorce case where each party investigates the other’s assets and makes requests for information. It can help your attorney understand the strengths and weaknesses in your case — and allow them to develop a strategy that will help ensure the best possible results are achieved. While the time-frame for the discovery process can vary, based on the complexity of the case, it is sometimes the longest phase of divorce, particularly if disputes arise about the adequacy of a party’s disclosures.

Although the discovery process in divorce is not mandatory, it’s essential to understand that Preliminary Declarations of Disclosure must be filed by each party under California law. This requires spouses to disclose their income, assets, liabilities, investments, property, and tax returns. The disclosure is signed under penalty of perjury at the beginning of a case and is distinct from the “final” declaration of disclosure which is provided at the conclusion of a case.

Detailed financial disclosures become a roadmap to settling the property and financial issues in a case. Without adequate disclosures, the parties cannot knowingly, intelligently, and voluntarily enter into agreements.

What Tools are Used in the Discovery Process?

The discovery process in divorce can be either formal or informal. With informal discovery, spouses voluntarily and collaboratively exchange information with one another — but you are limited to the information the other party is willing to hand over. While it is best for spouses to work together to exchange documents with each other, it is not uncommon (unfortunately) for spouses to refuse to cooperate in contentious cases. This is where the formal discovery process can be used to gather information and compel responses.

There are a variety of tools that can be used during the formal discovery process in divorce to compel a party to provide information, including the following:

  • Interrogatories — Interrogatories are written questions sent by one party to the other. They are answered under penalty of perjury and can help to clarify the issues to be presented at trial.
  • Depositions — A deposition is a formal interview that takes place outside the courtroom (but in the presence of a court reporter and the attorneys) to obtain information about the case. It gives each side the opportunity to ask the other party questions under oath about financial matters, child custody, and any other issues that are relevant to the divorce.
  • Requests for admission — Requests for admission are a discovery device that allows one party to request that the other admit or deny the truth of a specific fact or admit or deny the authenticity of a document under oath.
  • Requests for production of documents — This discovery mechanism can be used by a party to ask the other to turn over certain documents. Documents that are commonly requested using this tool can include bank statements, pay stubs, tax returns, credit card statements, and other financial paperwork.
  • Subpoenas — Subpoenas can be used to obtain information when one party refuses to respond to the other’s request. They can be used to compel a party or non-party to attend a deposition, testify in court, or produce documents. Failure to comply with a court-issued subpoena can result in civil and criminal penalties, including jail time, monetary fines, and being held in contempt of court.
  • Demand for inspection — Also referred to as a “request for production,” a demand for inspection can be used to ask the other side to produce a document, object or place (like a family home) in order to allow for copying or inspection.

The discovery process can be tailored to the specific issues in each case. For example, in some divorces, discovery might also include psychological evaluations, vocational evaluations, business valuations, appraisals, and expert witness testimony. The discovery tools utilized will depend upon the specific issues in dispute and the information that is sought.

How Can the Discovery Process Help with Divorce Settlements?

The discovery process in divorce can help paint a picture of each spouse’s financial situation, eliminate the potential for hidden assets, and provide both sides with the knowledge they need to make informed decisions regarding settlement. If necessary, an attorney can use the information learned in discovery to dig deeper and gather additional evidence to establish facts in the case. The information obtained can also be used to negotiate settlements.

Once a settlement has been reached regarding alimony, property distribution, child custody, child support, and any other issues that must be decided, an agreement can be drafted and submitted to the court to become a binding order. If a case does not settle, the information acquired during the discovery process can provide a foundation for any evidence that could be used at trial. It could also uncover issues that are best resolved by settlement. A skillful divorce attorney will know how to use discovery to structure a strategy that will secure the best possible outcome.

Contact an Experienced California Divorce Attorney

Discovery in divorce can be complicated and time consuming. Located in Walnut Creek, California, Bednarczyk & Valerio, LLP offers reliable representation and knowledgeable counsel to clients in California for a wide variety of matrimonial matters. Call 925-464-2494 or contact us online to schedule a consultation to learn how we can help.

Categories: Divorce