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How Does Discovery Work?

Read about the process of discovery in a divorce case.

How Does Discovery Work?

Divorce Dictionary

Discovery is the act of revealing information so that both parties are fully informed of facts before trial. Discovery can pertain to custody matters or finances or to one's physical or mental condition when those issues are relevant, such as when a spouse claims an inability to work due to an injury. Depending on the jurisdiction, other areas may be discoverable as well. Discovery methods include depositions, answering interrogatories, producing documents, and undergoing a physical.

Divorce Dictionary

A deposition involves answering questions under oath. In matrimonial matters, a deposition usually centers on a party's finances and is conducted in a lawyer's office or in the courthouse, but a judge will not be present. In some jurisdictions, the grounds for divorce may also be the subject of the deposition. A stenographer takes down everything that is said and later types it up for review by the parties and their attorneys. Once final, this deposition transcript can be used at trial to impeach your credibility or to prove a fact in the case.

Red Alert

While a pro se litigant is certainly entitled to step in and take deposition as well as conduct discovery, we do not advise it. In general, if you have enough money or property at stake to require these steps, you should dig in and hire an attorney to help you out. If there is enough at stake, it may well be worth a short-term loan.

Before your case can go to trial, you will go through the process of discovery. Here, you and your spouse, generally working through your attorneys, exchange information that might be important to your case. In some jurisdictions, discovery is limited to financial and custody issues. In other places, the discovery can involve issues of physical and mental health, especially if these issues were part of the grounds for divorce.

How does discovery work? It's like a scavenger hunt. Your attorney will receive a list (usually long) from your spouse's attorney, setting out all the information that lawyer wants—bank statements, credit card slips, cancelled checks, loan applications, credit card applications, deeds, wills, names of anyone with whom you own property; the list is limited only by the lawyer's imagination and the local law.

What if you don't have the materials requested? Unfortunately, your spouse probably won't believe you. You could end up before a judge, with your spouse's lawyer claiming you're hiding information and your lawyer explaining that you no longer have it. A judge will then rule for or against you.

Discovery is not limited to the production of written materials. You could also be deposed—obligated to answer questions under oath in front of a stenographer, your spouse, and his lawyer. You could be served with extensive written questions, which you are obligated to answer truthfully.

Discovery could also involve a physical examination by a medical doctor (if, for example, the issue is your ability to work), a blood test (if the issue is paternity), and even a psychological examination (particularly if custody is at issue or you claim you need support because you have psychological problems).

A judge need not be involved in discovery if the lawyers agree on a schedule and stick to it and if they agree on what is to be disclosed. However, if one side doesn't agree on what is to be disclosed, then the decision will rest with the judge.

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