Is Discovery Important in a Divorce Case?
Discovery is a critical part of most divorces. When a couple ends their marriage, there are a host of issues that need to be resolved, such as spousal support, child custody, and property distribution. Discovery is the information-gathering process. It is difficult to achieve a fair resolution unless both sides have been fully transparent about their employment, finances, and assets. Lawyers representing each party use that information to develop an effective legal strategy and approach based on their client’s needs and goals.
The evidence obtained through discovery also gives the lawyers idea a glimpse of what might happen if the case goes to trial. This way, they can advise their clients accordingly. Keep in mind, not all divorces go to trial. Some couples opt for mediation.
There are three key benefits of discovery during divorce:
- Discovery prepares both parties for trial.
- Discovery provides a clear picture of your situation.
- Discovery allows both parties to achieve a more reasonable and fair settlement.
What Type of Information Is Gathered During Discovery?
Typically, all income and financial assets going at least back three to five years must be disclosed during discovery. This can include:
- Bank accounts.
- Education records.
- Employment history.
- Insurance policies.
- Inventory of personal property.
- Real estate holdings.
- Retirement accounts.
- Tax returns.
- Trust fund information.
What Is Involved in the Discovery Process?
Discovery involves multiple steps, each of which prolongs divorce, but it makes sense to be patient. You are more likely to have a good outcome when both parties are fully transparent. After the divorce is initiated, lawyers of both parties begin exchanging information using a few different legal tools:
- Interrogatories: Interrogatories are written questions that must be answered truthfully under oath, under penalty of perjury. They relate to any aspect of the divorce: standard of living, parenting time, work history, education, and finances. In New Jersey, you have 60 days from the date of service to answer interrogatories.
- Notice to Produce Documents: This is a list of all divorce-related documents requested of you. They include paystubs, credit cared statements, bank accounts, auto loans, and investment and retirement accounts. New Jersey allows 35 days from the date of service to produce this information.
- Requests for Admission: A request for admission is a legal tool permitting one party to request the other party admit or deny the verity of a specific statement under oath. These admissions are part of the official record and maintained as evidence during the course of litigation. Generally, you have 30 days to respond to Requests for Admission in New Jersey.
What Happens if a Spouse Does Not Comply With Discovery?
Discovery must be responded to in a specified timeframe, depending on the type of request and information involved. While general guidelines are provided below for each case, the court can direct you otherwise.
Also, your lawyer can request an extension during discovery if necessary. However, if one party ignores a request, responds too late, or lies, they risk serious consequences.
Motion to Compel
What if your spouse refuses to provide the requested documents? Your lawyer can file a motion to compel on your behalf. This is an application for relief that essentially asks the court to order your spouse to cooperate and submit the requested documents by a certain date. If they still refuse to comply, the judge can find them in contempt of court. The judge can fine your spouse or even send them to jail.
A subpoena is a more extreme option for situations where one party lies, stalls, or refuses to comply during discovery. The lawyer for the other party issues a subpoena to collect the information from people or entities other than the couple getting divorced.
Your lawyer might serve a subpoena to your spouse’s employer to verify their income and employment history, for example. While the participation of third-parties adds time and costs to the divorce process, it may be necessary to gather all the facts.
After all pertinent information has been exchanged, the divorce lawyers schedule depositions. A deposition usually takes place in a lawyer’s office in the presence of a court reporter. During a deposition, the lawyer asks the witness questions, and the witness responds as the court records everything that is said. Today, many depositions are also recorded on video.
Witnesses can be the parties getting divorced or anyone who is relevant to the case. Depositions are used to provide insight into what a witness will say in court and how they will respond on the stand.
Is it Possible to Avoid Discovery?
It is possible to get divorced without going through discovery. Couples who can reach a settlement during mediation may not require discovery at all. During mediation, an objective, third-party mediator facilitates the process of working out the terms of divorce until both parties are in agreement. If that happens, both parties must waive their right to discovery.
You do not want to avoid discovery only to find out your ex hid bank accounts, income, property, and other assets after it is too late. Discovery allows for full transparency and peace of mind knowing that both parties have all the information they need to reach a fair resolution.
Marlton Divorce Lawyers at Goldstein & Mignogna, P.A. Handle Complex Family Law Matters
If you are considering divorce, speak with one of our seasoned Marlton divorce lawyers at Goldstein & Mignogna, P.A. We are committed to resolving your case through negotiation, mediation, or litigation. Our goal is to negotiate a fair settlement whenever possible. To learn more, call us at 856-600-6901 or contact us online to schedule an initial consultation. Located in Marlton, New Jersey, we represent clients in South Jersey, including Burlington County, Camden County, and Gloucester County.