What is Discovery?
The term "discovery" refers to the process of the exchange of information between the parties. This information includes each spouse’s personal and financial situations and is used in both dissolution and divorce cases in Ohio.
Informal discovery involves both sides exchanging information voluntarily. An attorney will prepare a list of important documents and ask the other lawyer for them. Your spouse’s lawyer will request the same from you. The more you both cooperate during this information exchange, the more money you will save.
The more contested the divorce, the more likely you will have to use the formal discovery process to get needed information. While discovery can add to case expenses, sometimes it is the only option available to learn about the other side’s current situation and increase the chance of a fair settlement.
A major part of your divorce attorney’s job is to collect information. Time and money is best spent when you provide your attorney with as much relevant information that you you’re your attorney will send the similar requests to your spouse’s attorney. (You won’t be the only one doing the hard work.)
Types of Discovery
Although laws vary from state to state, there are several types of discovery commonly used in divorce and dissolution cases: Interrogatories; Request for Documents; Request for Admissions; Subpoenas and Depositions.
This is the legal term for a list of questions that you send to the opposing side. These questions require the spouses side of the story as well as support for his or her various demands.
Schedule an appointment with your divorce attorney as soon as you can to review your answers for the interrogatories. Your attorney will have the answers typed into the discovery request and will have you verify that the answers are true. Keep in mind some questions will not apply to your case, so let your attorney know if a question does not apply. When you are reviewing the interrogatories, you can pencil in the answers you know.
This request is used to get specific documents such as personal and business income tax returns, mortgages, bank statements, retirement accounts, credit card statements, property appraisals, etc. Any documents that affect spousal support, property, child custody and support or anything else decided by the court can be requested.
Review any list of document requests you receive with your attorney. First of all, which ones don’t apply? Scratch those out or label “doesn’t apply.” If you have the documents, gather them for your attorney. If you know you have to order some documents from the bank or the Internal Revenue Service, go ahead and get a head start. If your spouse has your documents in their hand, tell your attorney and they will mark the paperwork accordingly.
Requests for Admissions
Sometimes known as Admissions of Fact, this is simply a written list given to the other spouse. The spouse receiving the list is asked to either admit or deny certain facts pertaining to the divorce and related issues. If there is no response within a certain period of time—usually 30 days—to the Request for Admissions, then the court will assume that the answer to each question is a “yes.”
Subpoenas are official requests for people—other than you or your spouse—to present documents or attend and testify at a deposition or divorce trial. Both attorneys are allowed to take depositions of anyone subpoenaed from either side.
Depositions are not often used in divorce cases because they are expensive and, generally, you already have a good idea what your spouse is going to say (that is why it is so important to tell your attorney the good and bad up front). Depositions require the person to come to the attorney’s office and answer questions under oath. The oral testimony is taken down by a court reporter, who then transcribes the it into a written transcript. Things said during a deposition can be used in court. If you receive a request for your deposition is to be taken, sit down with your attorney and go over what will happen.
What Happens Next
Once the material comes in from the other side, you should sit down and review all information requested. Ask yourself how this information helps your case. How does it fit in the overall scheme of the case? Why is this needed? What is the purpose? Is there any more you need to know?
Not Providing Discovery
The failure to provide discovery can result in different punishments by the court, from fines to sanctions. In some cases, the court may issue a sanction against the person that prevents them from presenting testimony or evidence on contested issues. If the court issues a Default sanction, the opposing party can proceed as if the case or issue is uncontested by the person who didn’t submit discovery. The court can also make the spouse who failed to provide discovery pay the attorney fees of their soon to be ex. If there are circumstances that mean you won’t be able to provide discovery in the amount of time given, you should submit a written request to the court with an estimate as to when the discovery process can be completed.
Why Discovery is Important
It’s important that you be forthcoming with your attorney about any facts concerning your divorce. Everything will come out at some point in the discovery process, especially in cases where emotions run high. Hiding things during the discovery process and getting caught doing so will only work against you in court. Being completely honest with your attorney also lets them do the best job they are able to for your case.
Discovery is simply the process of gathering information. The more information you are able to get, the better it will be for your case. Every divorce and dissolution have their variables. Discovery should be tailored to each case. Let your lawyer know what you hope to get from the discovery process.
Thinking about divorce or dissolution? Have questions? Contact Jack's Law at (740) 369-7567.