The Divorce Process (Part 2)

Jun 15, 2021

Join Tracy and Susan for part two of our divorce process series — discovery and gathering documentation.


Susan Reff: Today’s podcast is the second part of a three part series that is all about the divorce process. Last week, we talked about the beginning stages of the divorce, and next week we’ll talk about the end stages of the divorce. But today we’re going to focus kind of on the middle or the meet. And really, we’re going to talk a lot about the discovery process, including subpoenas and depositions and all of the document gathering that happens in the middle of the divorce process, which can be pretty, pretty stressful for clients and pretty time time time intensive, really. So I’m looking forward to passing along a lot of information about what I call the peak of the W in the divorce, the middle.

Tracy Hightower-Henne: And you call it the meat, the meat.

Susan Reff: Yeah, I did talk to the meat like a sandwich or a hamburger meat. So the

Tracy Hightower-Henne: The sandwich of a divorce process,

Susan Reff: The sandwich, you got to have all parts right.

Tracy Hightower-Henne: Listeners should know that Susan’s a vegetarian, so for her to use the word meat at all. Big, big.

Susan Reff: I don’t avoid the word meat.

Tracy Hightower-Henne: Yeah. Well, what’s new with you?

Susan Reff: Well, I think for us, some exciting things have been happening. We, you know, we have a new billboard up that we’re getting some pretty positive feedback on. And we, you know, we started the billboards almost a year ago. Maybe, maybe I can’t even remember

Tracy Hightower-Henne: It was in September because we put joy on the billboard, one of our lawyers before she her first day and we were like, Well, you can’t back out now. Yeah, you’re like 30 feet tall on 90th and dodge.

Susan Reff: Yeah. And so we’ve had three or four billboards or four or five now, and it’s been really exciting. And we we get to have fun with them and put put catchy phrases. So we have to up right now that have some pretty, pretty fun little tongue in cheek statements on them.

Tracy Hightower-Henne: I actually just saw one this morning as I was going to get some blood drawn. I hate getting my blood drawn, by the way, they can never find veins. But you know, I had some blood work done and I had severe deficient vitamin D and I was like, Duh, we’ve been in a pandemic. I can’t go outside. So I went to get the blood checked again, and the lady says, which arm is better? And I said neither. And I was like, Just, you know, I don’t know, get some out of my neck or something. I don’t

Susan Reff: Think they can do that

Tracy Hightower-Henne: Well anyways. She got it. But yeah, I saw a billboard on the way there, which is pretty great. And then our newest billboard that’s going to be coming up. You can see it while I’m sitting in the Starbucks drive thru, which I won’t tell you how often I go to Starbucks, but I told the gal in the window. I said, We’re going to have a billboard right there. And she was like,

Susan Reff: Ok, well, since you go so often, is it the same gal every time?

Tracy Hightower-Henne: Oh, it’s well, how we can’t tell people how often I go. It’s it is the same. Similar people often, and they’re always like, Hi. I also get almost the same exact thing every time. So when I change it up, they’re like, What was going on today?

Susan Reff: You must have someone in your car. Someone else is ordering.

Tracy Hightower-Henne: And so, you know, like the Starbucks, people are younger people, you know, maybe in their twenties. And so when I said, we’re going to have a divorce billboard up there, they’re like, Oh my gosh, that’s weird, because they all are like, excited to get married and stuff, right?

Susan Reff: But they’re like, You’re excited about divorce.

Tracy Hightower-Henne: Yeah. They didn’t quite get it.

Susan Reff: Well, we’re always excited to talk about divorce, right? And talk about the process and help educate people, including our clients. And today

Tracy Hightower-Henne: We ourselves

Susan Reff: As the lawyers.

Tracy Hightower-Henne: I mean, stage two.

Susan Reff: Yeah. Stage two learning. I learn something new every time, every every day. But discovery is like the broad term, meaning the legal process to get information that might be used for settlement or might be used at trial. You know, it’s a lot of document gathering, a lot of requiring the other side to answer questions under oath. So it’s pretty stressful time.

Tracy Hightower-Henne: Yeah. And we usually there’s kind of a default process, but sometimes we make it a little bit more unique to. Handing on the circumstances of each case, but typically we start with, is this Latin interrogatories, I think is that a Latin phrase?

Susan Reff: Google help us? I don’t

Tracy Hightower-Henne: Know. Ok, so anyway, we send out, we send out what’s called interrogatories, which is a fancy word for questions. And then we also send out what’s called request for production of documents. So that’s typically how we start a discovery phase in a divorce process, and we usually ask some general questions and ask for a set of documents. It’s pretty typical throughout, so we probably will ask for bank statements, credit card statements, mortgage statements if there’s any appraisals in the house. And so what we’re getting at in this phase is what are the debts and assets and then how much are they worth?

Susan Reff: Right? And it can seem super overwhelming, right, for our client to say because our clients get asked to produce these things as well. So they’re being asked to produce all of those documents that you just said. And thank goodness for the internet, right? And they can go and log in and download all of their bank statements or pay stubs or retirement statements and share those with us.

Tracy Hightower-Henne: Yeah. How did this work before the internet,

Susan Reff: Photocopies,

Tracy Hightower-Henne: Faxes, fax? We do still have a fax machine in our office, by the way.

Susan Reff: We actually have to. Now we do with our new phone system we can fax. Oh, wow. So we have our old one. Not only

Tracy Hightower-Henne: Do we have a fax machine, we have to have two

Susan Reff: Two mechanisms for faxing and probably neither get used. Hardly ever. Actually, I fax yesterday,

Tracy Hightower-Henne: But also now I mean technology. We can put all the information on a thumb drive or we can upload it into the cloud. So now emailing. Yeah, yeah. So we’re we’re getting all these documents and we’re typically around the same time. Both sides of attorneys are sending the requests and sending the documents. And so we’re also at the same time helping our clients gather the documents, organizing them in a way to send to opposing counsel at the same time as were potentially receiving the opposing party’s documents and reviewing them.

Susan Reff: I have two open cases right now where our client is the lower earner and our client is completely unaware of what the document like, what is in the retirement accounts of the other person and the savings accounts and really like what their house is worth, what their mortgage balance is. So getting the documents from the other side and sharing those with our clients really helps them to know what they’re entitled to as well, you know, and then they always say, Well, you know, then they ask you for interpretation of what all of it means to write, So we’re doing that once we get these documents is helping our clients understand what it means to have a certain amount of mortgage versus equity in a house

Tracy Hightower-Henne: And or a second mortgage or a home equity

Susan Reff: Line, right? How that affects the equity in the house.

Tracy Hightower-Henne: And we often well about 50 percent of the time. We have one spouse who doesn’t have really the knowledge of the financial picture and then the other 50 percent of the time. We have the spouse in a case where they have all the knowledge and maybe they’re the person in charge of paying the bills, right? And I always find it really sad or interesting when a client says I should have known better, I should have, you know, paid more attention. And at this point, the answer is, you know, don’t don’t beat yourself up over that. That almost, I would say a lot of marriages. It’s one person who just does it because it either is their skill set or their strength. Or maybe they’re a CPA, and it’s just easy for them. But oftentimes people beat themselves up over not having had more knowledge. And I don’t think and it’s those consultations that I actually really love telling those people, Guess what? We’re going to find it all out, right? Because Discovery is this super comprehensive system where we get to find out everything we want

Susan Reff: And, you know, something that you do a lot that I notice you doing on your cases. A lot is you just go directly to the source and issue a subpoena. Salatin I believe subpoena is Latin and very hard to spell. I love

Tracy Hightower-Henne: Subpoenas

Susan Reff: And I don’t think spellcheck knows how to spell subpoena.

Tracy Hightower-Henne: I have to sound it out, subpoena. That’s how you spell it right.

Susan Reff: But I still think spell check autocorrect set to peonies

Tracy Hightower-Henne: Like

Susan Reff: The like. Oh, that’s what mine does

Tracy Hightower-Henne: On your phone or on your computer.

Susan Reff: On my computer, Lisa

Tracy Hightower-Henne: Doesn’t spell check it to like pansies or something that’s not close, though pennies is not close.

Susan Reff: Well, I think it’s the Pistone. Got it. Yeah, so but a subpoena is really a formal request to a non-party. So like a bank or, you know, you might subpoena employee records from the opposing parties employer like their disciplinary records or their pay stubs because they’re not giving you everything. So that’s just a direct request. And then you get a whole stack of of papers that you can go through. And so like, I recently subpoenaed treatment records.

Tracy Hightower-Henne: What kind of

Susan Reff: Treatment, drug and alcohol treatment?

Tracy Hightower-Henne: Oh, not like foot treatment?

Susan Reff: No.

Tracy Hightower-Henne: Not like athlete’s foot treatment. Yeah, OK. No.

Susan Reff: I don’t know if that would even be as. Yeah, that wouldn’t be as fun. Yeah, as as some of the other stuff, because people don’t want to tell you everything. You know, you can ask the question, but you know, it’s only as good as the answer that they give you.

Tracy Hightower-Henne: I find looking at people’s bank statements fascinating. I think I’ve told you before that if I could have a superpower, I would, you know, be a fly in the wall and just listen to people’s conversations. But even better is looking at what they spend money on. Yeah, I mean, there’s a lot of fast food eaters that use their debit card too. Well, is what it is. No judgment. It just is interesting. Sure.

Susan Reff: And I think, you know, we we can use some of that in cases where the other side says, I can’t afford to either give up so much of my retirement or pay that amount of child support or pay alimony. And I think I remember a trial and maybe you were in the room where I said, Well, but you’re spending one hundred dollars plus a month for the beer of the month club. And the person was like, What? How did you know that about me? I’m like, Well, it’s on your. It’s on your bank statement. But I think one of the really neat things that I learned from you on bake bank statements was to review them and see what other accounts they have that they’re transferring money back and forth to, and then make sure you have those bank statements. Because, you know, I think most people probably have a checking account and a savings account. But some but sometimes people have multiples and then they’re like, Well, I’m just going to turn over my primary, you know, the one I use most often, and they don’t need to know about that other one because there’s just a bunch of money just sitting there. And then we see transfers and we’re like, Wait a minute, you didn’t give us this. Yeah, and that’s that’s what I learned from you.

Tracy Hightower-Henne: And I think that’s I mean, that process takes a while, but we can be pretty efficient in it. Exactly. Know where to look on which bank statements Page one or Page three of First National or Bank of the West, whatever. But I often have clients ask me, Well, my spouse is hiding money and you’re never going to be able to find it. So this discovery process is worthless. And I said, Oh no, we’ll find it because you have to look at those bank statements. And I typically will say, unless your spouse deals and only cash, meaning they literally like, do drug cartel and there’s no other way that they get paid. We’ll find it because even if someone works for an employer on their paycheck, it will say what account is money going into? So, you know, some people put some part of their paycheck into a savings account and some and that shows on your pay stub, right? I had you probably recall the case. It was a while ago, and the spouse was arguing, similarly, that he didn’t have enough money to even pay child support, much less spousal support. And when we got his bank records and this couple had kept their money very separate throughout the marriage, we saw a lot of ATM transfers. Oh, you had an ATM that was like weirdly not located anywhere near his work or their home. Yeah. And after some investigation, we realized it’s the ATM that’s very close to the strip club. Yeah. So he would go on these evenings like and also there was the conversation that, you know, he wanted 50 50 custody and he was going to the strip clubs like almost every weeknight. Yeah, and taking money out from that ATM. So that was also, you know, you kind of have to think about like, why is this weird thing happening? And in that situation, our client didn’t know because they had kept their money separate, right?

Susan Reff: And he was probably saying something like, I have to work late tonight or have a work function. And yes, she believed him. So another part of the discovery process that is used in divorce cases is depositions and depositions are like an interview of someone. It doesn’t necessarily. Have to be the people getting divorced, it could be a witness, it could be a doctor, it could be their employer, anybody that might testify in the trial and it’s under oath. And what I think people don’t understand about depositions is it’s just an information gathering tool. It’s not something that is, you know, you don’t it’s not automatically shown to the judge things like that. It’s it’s like a pretrial thing that happens to help people learn more or clarify information that you don’t know. And sometimes you can use a deposition, you know, maybe of like a medical doctor or somebody instead of having them come to trial. But that’s something the lawyers have to agree on. We don’t take depositions in every single case, but it’s helpful sometimes to know how someone like how the other side is going to testify at trial. Are they? Are they going to come across as a really good witness or are they going to be believable? Is the judge going to buy into their story? Sometimes that’s helpful to know ahead of time.

Tracy Hightower-Henne: Yeah, and sometimes it truly is just a strategy move that I’m going to give away some of my strategy for opposing counsel who might listen to this. But sometimes setting a deposition puts a little bit of fire under someone’s feet. Yeah. To get the case moving a little bit. So sometimes we’ll set a deposition, maybe with no intention of actually taking the deposition just to have a sort of date to move towards when maybe trial is, you know, six more months down the road. But then you kind of you might get your bluff called and the deposition might get scheduled and the settlement doesn’t happen. So you either decide you need to cancel the deposition or take the deposition. And I think oftentimes we’ll still take the deposition and use it as just that additional tool to get more information. Sometimes very rarely, we will take a deposition without doing written discovery, and we’ll just use that as our tool to get information. But it’s just it really, truly is a conversation piece of, you know, interesting facts where we can we may take those bank statements. And, you know, for the guy that went to the strip club all the time, I may put him literally in the hot seat and say, Tell me, why are you going to say to him on so-and-so in Council Bluffs? And, you know, see how he responds and and then that also can drive settlement to like that person probably doesn’t want the judge to hear that question in court. Sure. So who’s in the room in the deposition?

Susan Reff: So it’s not really a deposition unless there’s a court reporter, they’re taking down everything everyone says. So the court reporter puts the person being questioned under oath, says, You know, you’re going to you’re going to tell the truth here, right? And they say yes, and

Tracy Hightower-Henne: I wish they would say exactly that.

Susan Reff: Tell the truth or else obviously the person asking the questions. So, you know, if it if you’re taking the deposition of the other party, you would be there. You’re our client can be there. Sometimes they are, and sometimes they aren’t. But they have the right to be there. The other, the person being deposed, their attorney. Now, interestingly enough, we have run across cases where the other attorney does not show up for their own client’s deposition, and the client and the attorney either have an agreement ahead of time that the attorney is not going to be there and they waive their attorney’s presence and they go forward and get deposed without their lawyer there. Or the attorneys just

Tracy Hightower-Henne: Didn’t know how to use their calendar, didn’t

Susan Reff: Know it got scheduled and didn’t show up. And so then it gets rescheduled. That’s only happened a few times, but those kinds of things can happen.

Tracy Hightower-Henne: How about now? We do not do this, but we know of some lawyers that will literally put like the chair that the person who’s going to be deposed, they’re called the DEP.. The chair that the DEP. is going to sit in is a broken chair, right? So that literally they are physically uncomfortable during the deposition.

Susan Reff: So that that actually happened to me. I we we were at the other attorney’s office and they we were both taking the depositions of our clients. So one after the other, yeah, I represented the wife, he represented the husband. And, you know, we went to the office. My client and I were shown into the conference room and the court reporter was already there and she’s sitting at the head of this very long table and no one else was in the room. And we’re taking off our coats and putting our bags down and stuff. And the court reporter really likes to assign where everyone’s going to sit so that they can hear really well and they can see your your lips moving because they also do a lot of like lip reading and facial expressions to. Help them get the words correctly recorded, so the court reporter, you know, as we’re coming towards the chairs to sit down, she says, Well, I would like you to sit right there, but you’re going to need to move the chairs because one of those two chairs, so either the one I was going to sit in or the one my client was going to sit and she goes, one of those two is broken. And I was like, What? What, what do you mean? And she said, Well, that’s what they do here. They meaning that law firm, they leave the broken chair where the other people are going to sit. They just

Tracy Hightower-Henne: Got called

Susan Reff: Out. And so, yeah, so there was like, you know, I don’t know, 10 or 15 chairs in this room. So we just shuffled them around.

Tracy Hightower-Henne: And did you move the broken chair to where? No, that attorney would sit. No, I did not.

Susan Reff: I just lit it down to the other end of the table.

Tracy Hightower-Henne: That’s awful.

Susan Reff: Yes. So, yeah, we wouldn’t do that. We don’t even have broken chairs like that’s the other also.

Tracy Hightower-Henne: Right? Yeah. What are they doing with broken chairs? But you know how sometimes you’ll you can put the chair like all the way down to the ground? Yeah. Maybe I’ve done that one time, but not a broken chair. No, it still goes up the chair.

Susan Reff: So other crazy things that can happen during a deposition. I was having a deposition at the courthouse in a case because it was a criminal case. And so the county attorney is a party or they’re representing the state of Nebraska. So that’s their office and there’s court reporters at the courthouse. So that was convenient. So we went to the courthouse and there was a witness who was refusing to answer a question and was being instructed by the county attorney not to answer a question. And I kept asking the question in ten different ways, you know, trying to get them to answer, and they kept not answering. And so the really cool thing you can do in a deposition is you can stop the deposition and you can ask a judge for instruction or a ruling on requiring the witness to answer or not. So we were at the courthouse. We went, we went upstairs to the judge and the judge put us in the courtroom and we had a little hearing on whether or not this witness would have to answer the question. And ultimately, the judge couldn’t decide right there. And then he said, You know, I need to do some research. And he asked us to write a brief on it. And at that point, I was like, we kind of just finished his deposition. So we ultimately went back downstairs, finished up the deposition. I wrote a brief on it. The other side didn’t write a brief. And the judge issued a ruling and it didn’t really end up mattering in the case. But you can do that right in a deposition. You could get the judge on the phone. You could have a hearing, right? You could.

Tracy Hightower-Henne: Yeah. So depositions are helpful in a lot of different ways to get more information. But oftentimes in a divorce case, we can get most of the information in discovery and the written discovery. And the other thing to keep in mind to about written discovery is once we get the questions for us and our clients to answer, we have 30 days to respond. So 30 days seems like a long time. Obviously, it’s going to go quick, but I think one of the biggest things is to not procrastinate and not wait until day twenty eight to start gathering the documents, right? There’s some. There’s consequences if we don’t provide the information within that time frame or if we don’t, sometimes we’ll get an extension out of courtesy from opposing counsel, but don’t also think you’re going to sit down and do it in one day. It also can be emotionally tolling to answer some of the questions, but leaning on your lawyer to to help with some organization, you may need to have a friend or family help you gather some documents to write.

Susan Reff: It’s I think the discovery phase is very is very hard and it’s a little bit different from, you know, the first part of the divorce because it’s requiring people to pull their proof of their financial picture. And, you know, like when you buy a house or refinance a house and you have to provide all that, it’s it’s that on steroids, right? Yes. Like, you have to provide everything and sometimes you have to do it more than once and sometimes you have to pick certain dates. So the key is to just, yeah, take your time. Don’t do it all at once. Yeah.

Tracy Hightower-Henne: And it’s probably one of the most important phases, though. So I think that level of importance and priority should be remembered when you’re getting getting the documents because it’s the only thing that your lawyer can do to help you identify what your debts and assets are, especially if you’re the one spouse in the position where you really didn’t have an idea of your finances, right?

Susan Reff: Yeah. Without the discovery process, we wouldn’t we wouldn’t know how to either settle the case or prepare for trial. So it’s it’s vital to getting the case done.

Tracy Hightower-Henne: Yeah. And in the next episode, we’ll talk about how discovery works on, you know, prepare. Ring us for trial and getting exhibits prepared and all of that.

Susan Reff: Or maybe preparing for settlement, yes, which we really like. So looking forward to talking about that next time and and talking about what happens after the final order in the divorce is issued

Tracy Hightower-Henne: Because when it’s over, it’s not really yet over. It will be over at some point. All right, until next time.

Announcer: Thank you for listening to the Lady Lawyer League Podcast. Be sure to like and subscribe anywhere you get your podcasts, if you would like to learn more about our firm, Hightower-Reff Law, please visit our website at H r Law We’ll see you next week.

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