By Nathan A. Hacker
Discovery is the process whereby an attorney learns or discovers information about the other parties through a series of questions that are guided by the rules of the court or the state.
It will allow your divorce lawyer to see the entire picture. Without a complete discovery process you cannot be sure that you have a complete picture.
It would be like coaching a football game where you could only see your team and the other team is invisible. Your attorney (coach) might be able to guess what is going on but is also likely to guess wrong at some point and disaster would strike. It is important that you allow your attorney to see the entire game so that he can coach you to a victory.
Discovery may take on a variety of forms and processes all of which have their own particular value and each will be discussed in upcoming parts as part of DadsDivorce.com’s "Discourse On Discovery" series.
These processes are: Interrogatories, Requests for Production of Documents, Requests for Admissions, and Depositions in addition to third-party discovery. Each jurisdiction will have its own rules regarding the use of these tools of the trade, but an experienced divorce lawyer for men practicing in that jurisdiction should be versed on their use as they are quite frequently used in various areas of practice and should be used regularly by attorneys to advocate for their client.
All jurisdictions should require an oath when answering these requests and the responses may be admissible in court as statements by a party opponent under oath to impeach a witness or rebut testimony.
What Can You Ask In Discovery?
Again, while it may vary by jurisdiction, the general rule on whether or not you can ask or request something of the other party is whether or not the request will lead to discoverable information. In other words, there is a very low burden on the nature of the question being asked.
Your attorney may be able to object to questions for various reasons, but you may still have to answer the question and wait on the court to rule whether or not it was appropriate. The objections to the various forms of questions and topics will be addressed in each following part. They types of objections vary depending on the type of discovery request and nature of the question or request.
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Proving Lies With Third-Party Discovery
Discovery is also not just something that can be sent to the opposing party, though the rules again vary based on jurisdiction and the type of information sought. I will make the assumption here that you are not married to the University of Kentucky. That would be illegal in most states, though I know a guy who thinks he is; their fans are ravenous.
What is commonly referred to as third-party or non-party discovery is the process of obtaining information from someone not a party to the case. In other words, let’s say your wife is claiming that she graduated from the University of Kentucky in 1992. You happen to be aware that she has never graduated from the University of Kentucky or any of its subsidiary colleges.
How do you prove it beyond your testimony that she is not being honest? The answer is to send the University of Kentucky a request for information or interrogatory.
You will also likely have to send an affidavit of the keeper of records to the university as part of the request. You will also have to file notice with the court, give the other side time to object (or "move to quash" the request. I love that legal lingo), and answer any objection the University of Kentucky may have. In the end though, you will get the proof of a negative through the use of third party discovery.
Third-party discovery extends beyond the use of requests for information, though. Third-party discovery’s value is most often found in the deposition of a witness that is not the opposing party. Strategy and the use of depositions will be discussed in subsequent parts, but for now, keep in mind that use can extend to anyone who may be a witness or have relevant evidence.
The Discovery Process
While there is no set order of events or requirement that every tool be used on every case, there is a general manner in which the discovery process proceeds.
First, a party will send out a combined first set of interrogatories and request for production of documents. These can be followed up with a second set of requests, or third-party requests.
After this is done the depositions of key witnesses are generally taken to secure their testimony. This can then be followed up with requests for admissions to narrow any issues for trial.
Discovery is not a one-way street. The opposing counsel in your case will be sending similar requests to you. The opposing party is simply trying to ensure that the entirety of the marital estate is being disclosed and that you are not wasting it on illegal activities.
You need to answer honestly and not try to hide any asset. If the court finds out that you have tried to hide an asset the ramifications are far worse than having admitted the asset and fought to protect it.
You should also keep in mind when these questions or requests have been made of you that there are penalties for not following up and giving the answers. While the penalties change from jurisdiction to jurisdiction, failure to answer the requests in a timely fashion can impact everything from attorney’s fees related to the production to admissions being held against you for failure to respond.
Should you need more time to answer the questions, it is imperative that you let your divorce attorney know right away. Extensions of time are frequently given in order to aid in the response to questions. More often than not the opposing counsel will agree to give you more time in exchange for more time on their end.
I would suggest that if you are thinking of filing for divorce that you begin to save account statements, 401k or retirement account information, credit card statements, and other financial documents because your finances will account for the vast majority of the discovery requests sent to you.
It will also help your attorney address the financial situation early in the case to preserve your assets as best they can under the law.
Read all the articles in our "Discourse On Discovery" series: