The discovery process in a divorce is an exchange of financial and other important information. In any divorce, spouses must divide property between them. In order to do so, spouses have to exchange information with each other regarding finances, assets, properties, and debts. The discovery process can be informal agreements between spouses, or it may be court-ordered. Court-ordered discovery cannot be ignored. The discovery process not only helps with property division but also helps both parties understand what evidence the other side has before litigious divorces.
When Is Discovery Court-Ordered?
Discovery is always court-ordered in a contested divorce. A contested divorce occurs in court and happens when spouses are unable to agree on or negotiate a separation agreement. A separation agreement includes important parts of a divorce, such as alimony, child custody and visitation, child support, and division of property.
When spouses are already in agreement about these items or are willing to work together to reach a compromise, this is an uncontested divorce. In an uncontested divorce, discovery may be court-ordered, or it may be voluntary. Voluntary discoveries happen when the parties trust each other to not hide financial or relevant information and want to conclude the divorce more efficiently. However, discovery can also be court-ordered in an uncontested divorce. Formal discovery is much more serious.
What Information Is in Discovery?
Discovery in a divorce is largely to help all parties understand the financial standing of both spouses. Requested documents or questions may cover information such as:
- Income, resources, and assets
- Employment history
- Federal and state taxes
- Investments, stocks, and bonds
- Real estate and properties
- Expenses and debts
- Businesses or business interests
- Children involved in the divorce
- Insurance costs
- Healthcare costs
Discovery is primarily for the division of property. Most Midwest states operate under equitable distribution laws. If a divorce is contested and spouses do not have a valid marital agreement, equitable distribution laws apply. This means that the court will review factors about spouses and their marriage to determine a fair, not equal, split of marital assets.
Tools Used in Formal Discovery
In formal discovery, parties exchange relevant information and continue with discovery from there. The most common discovery tools in divorce are depositions and interrogatories. Not every discovery will require every type of discovery, although some will. Discovery tools may include:
Interrogatories are a series of written questions between parties. The answers are held under oath and must be answered completely by the other party. These questions generally cover relevant financial information or concerns about the divorce case. Often, interrogatories are limited to 30 questions under several states’ laws, but if there is a good reason, the court may allow further questions.
- Notice to Produce
This is an official request to produce documents and records if they are missing from the initial exchange. These requests must be made in good faith and be possible for the other party to produce. Notice to produce may cover documents such as deeds, bank statements, tax returns, paycheck stubs, or similar documents.
- Request for Admissions
This helps establish important facts for a divorce case. A spouse will be provided with statements by the other party’s attorney and must either confirm or deny those statements. Both parties may complete a request for admissions.
Depositions are generally in-person statements by spouses and other relevant witnesses. One or both attorneys will ask the person under deposition to answer questions. This is done under oath and helps attorneys gain a better understanding of how the case is likely to go. The attorney can use this opportunity to clarify information learned in other parts of discovery. Depositions can last for several hours. Because the information is under oath, depositions can be used to catch lies during litigation. If the information contradicts, the individual can be charged.
Subpoenas are usually needed if a spouse or their attorney suspects the other party has hidden assets after other steps in discovery. A subpoena can also be necessary for information from professional third-party authorities, like hospitals, schools, or banks.
Q: What Are Good Discovery Questions for Divorce?
A: Several states have forms with standardized questions for a formal discovery process and interrogatories. Examples of good questions in discovery will determine:
- A spouse’s current income
- A spouse’s current financial resources, properties, or additional income sources
- A spouse’s current debts and expenses
- The value of a spouse’s retirement accounts, marital home, and other large assets
- A spouse’s employment history
- Whether a spouse has prior child support or spousal support obligations
- What witnesses a spouse will call in litigation
- Any other information relevant to your unique divorce circumstances
Q: Is Discovery Worth It in a Divorce?
A: Discovery is a required part of any divorce, even if spouses choose to use informal discovery. Formal discovery is required in contested divorces. If you are working toward an uncontested divorce, you can decide whether you want to use formal or informal discovery. Informal discovery may be less cumbersome, but it can also make it easier for a spouse to hide or inaccurately value assets and debts. An attorney can help you understand whether a formal or informal discovery process is right for your divorce.
Q: How Far Back Does Discovery Go in a Divorce in Illinois?
A: The discovery process is adaptable to the needs of spouses in a divorce and will require any relevant information. Generally, this is financial, asset, and debt information from the last three to five years. In Illinois, the interrogatories portion of the discovery process has a limit of 3 years for all documents. However, other parts of discovery, like requests to produce, do not have the same limits. If the information is relevant to the discovery process, divorce, and division of property, the discovery process may be able to request documents from any point in time.
Q: How Long Do You Have to Respond to Discovery Requests in Oklahoma?
A: Under Oklahoma law, an official request for the production of documents must be answered in writing within 30 days during divorce discovery. These documents must be in the spouse’s ability to produce. Generally, this 30-day response also applies to interrogatory responses and to requests for admission.
Contact Stange Law Firm
Discovery can be a complex legal issue to handle during a divorce, but it is essential to a fair outcome. For experienced legal counsel, contact Stange Law Firm today.