by Jill Rauk Daugherty

Once your divorce case has commenced, your focus should be on obtaining and organizing information in preparation for trial. To be properly prepared for trial, you must know the strengths and weaknesses of your own case, but you must also analyze the strengths and weaknesses of your spouse’s case. The tools that assist you in obtaining the necessary information to make this analysis are generally called “discovery.” 

Two of the most common discovery tools are called interrogatories and request for production of documents.

Interrogatories are a set of written questions propounded by one party and required to be answered by the opposing party under oath and within a certain amount of time pursuant to rules unique to each jurisdiction. The questions are meant to assist you in determining in advance what facts your spouse will be presenting at trial.

Interrogatories are usually very broad in scope so it is common for an attorney to use forms containing standard questions that are generally relevant to divorce cases. Some counties and states have their own special interrogatory forms which your attorney may be required to use. Requests for production of documents compel your spouse to produce certain documents in his/her control. Like interrogatories, the response to this request must be provided within a certain amount of time.

Requests for production are also broad in scope and attorneys may utilize personal forms or forms required by your jurisdiction. If you propound, or submit, interrogatories and/or a request for production of documents to the opposing party, you can assume that your spouse will respond by propounding similar discovery requests upon you. Keep in mind that interrogatories and requests for production may compel you to produce any material which is relevant to the case or may otherwise lead to relevant information. Requests for information that may be objectionable at trial are not necessarily objectionable during the discovery period. There are, however, some limits to the breadth of interrogatories and requests for production.

For example, information considered to be attorney-client privileged is generally protected and not discoverable. Documents created in anticipation of trial are considered to be work product and are also generally protected. You may also seek a protective order from the court if you believe that a request is too burdensome or expensive to comply with and the information sought is minimally relevant.

My opposing counsels will sometimes tell me that formal discovery is unnecessary in a case because it is too time consuming or too expensive. Your spouse or his/her attorney may accuse of trying to delay the process or unreasonably escalate attorneys fees if you propound discovery. Perhaps the opposing side is pressuring you to simply “informally” exchange information instead. Keep in mind, however, that there are three major problems with the informal exchange of information route.

First, the opposing party has no deadline to provide you with information. Second, the opposing party is not under an oath to be truthful and comprehensive when responding. Third, the opposing party has no obligation to continue to supplement information as circumstances change. In my opinion, formal discovery actually expedites the divorce process by setting a deadline for responsiveness and imposing a requirement for truthfulness and comprehensiveness.

If your spouse intends to be efficient and truthful in providing you with information, formal discovery should create no additional burdens for him/her. Do not assume that your case is going to settle and do not assume that you are aware of all of your spouse’s income information, property interests or debts. Certainly do not assume that it is your spouse’s intention to be expeditious and forthright in his/her disclosures. Work with your attorney to utilize the discovery tools available to you. If you proceed formally, cautiously and armed with information, you will get the best result possible.

Jill Daugherty is the Managing Attorney for the Overland, Kansas Office of Cordell & Cordell, P.C.