What’s this Discovery You’re Talking About?

November 7, 2019

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During your divorce, your attorney will likely talk about having to do “discovery”.  Discovery is the process in a divorce case where spouses will gather documents and provide them to the other side in an organized manner.  Discovery is usually done to identify all debts and assets that need to be separated in the divorce.  During the discovery process, each side is allowed to find out as much information as possible prior to trial, and neither side is allowed to withhold information.  Doing discovery also helps you and your attorney talk about what a fair settlement offer might be or to respond to a settlement offer from your spouse’s attorney.

Interrogatories, Requests and Subpoenas

Discovery can take many different forms, including: Interrogatories, Requests for Production of Documents, Requests for Admissions, Depositions, and Subpoenas.  Each of these have time limits to provide responses, typically 30 days.

Interrogatories are a set of written questions that your spouse’s attorney will send to your attorney for you to answer.  Your responses to interrogatories will be in writing, under oath and your answers carry the same weight as if you were testifying in court.

Requests for Production of Documents are provided when your spouse’s attorney is seeking documents, as opposed to just answers to questions.  In a divorce, it is important that both attorneys have a copy of all documents in order to prepare a settlement offer or prepare for trial.  You cannot hide documents and must produce the documents that are requested that are in your possession.  Documents that are typically requested in a divorce case are tax returns, income statements or paystubs, bank statements, and credit card statement to name a few.

Requests for Admissions are questions sent from your spouse’s attorney for you to answer simply whether you admit or deny certain questions.  These are not always used as a discovery tool but when they are it is important to answer them truthfully.  Your answers are also provided under oath.

Depositions might be set in your case if one attorney wants to ask you questions in person before trial.  Typically, these are completed after all the written discovery is done but a deposition is not always done in every divorce case.  If you are required to appear for a deposition, you and your attorney will discuss what to expect.  A court reporter will be present and will record everything that is said so that there is a written record later of all the questions and answers.  Your testimony at a deposition is under oath and can be used later at trial.  The judge is not present at a deposition and it usually takes place in one of the attorney’s offices.

Subpoenas are a request sent to someone other than your spouse.  Typically, subpoenas are sent to a bank to request bank statements or to a business to request personnel information.  Depending on the circumstances of your case, it may be appropriate to send a subpoena to get documents.  A subpoena is a cost-effective way of making sure you get complete records.  Your attorney will help determine if a subpoena should be sent in you case.

Discovery Tools

The discovery process in a divorce case can take many forms. If one attorney needs to find out information related to the case, there is typically a way to get that information.  It is unlikely debts or assets can be completely hidden and they are usually traceable.  If you think your spouse is hiding assets, it is important to tell your attorney why you believe that so your attorney can determine what discovery methods can be used.

If you are contemplating divorce and prepared to discuss the process, contact our office to talk with our experienced divorce attorneys.  It is often very helpful to ask your questions in a consult long before filing for divorce.  Information you can find on the Internet may not apply to your case and it is important to discuss the unique aspects of your case with an attorney.


This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 


 

If you need help with a Nebraska or Iowa Divorce case, contact Hightower Reff Law today and come visit with one of the attorneys at the Omaha office.