Discovery When You Can't Cooperate

If you and your spouse can't work together to collect the information, your lawyer will need to use the muscle provided by court rules to get it. When 123 parties are angry and hostile, they often try to keep information from each other. But if you play hard to get with information the other side is entitled to have, you end up paying your lawyer to delay the inevitable. This is not in your best interests.

If necessary, there are a number of tools your lawyer can use to obtain information. They are as follows:

  • Interrogatories. These are a series of questions your lawyer sends to the other side that must be answered under oath within a specified time period, usually twenty or thirty days. The questions ask for information about income, assets, parenting attributes, and other things you and your lawyer want to know.

  • Request for admissions. This is a list of statements that, if not denied within twenty or thirty days, are taken to be true. Your lawyer can send a series of statements to your spouse's lawyer, along with a notice that says, “If you don't respond within thirty days, these statements will be deemed to be admitted to the court as fact.” These statements can be something like: “I will be able to get a good job within three months, and I will be able to support myself.”

    In reality, it's unlikely a court will deem the statements admitted if a spouse fails to respond in the time period allotted, partly because this failure is very common. Most judges extend the time to respond, but some judges are tough and strictly follow the rules. You'll need to rely on your lawyer's information about your judge. To be safe, answer all discovery requests on time.

  • Request for production of documents, also known as a discovery demand. This is a legal demand for documents you want within twenty or thirty days. It means just what it says — your spouse must get you the documents you listed in your request if they are in his possession. These documents can range from the checkbooks of his closely held corporation to verification of Aunt Molly's cash gift in 1978 to your children's medical records. Failure to answer in the allotted time is a reason to go back to court. The good news is that the threat of seeking a court order is usually enough to get the documents.

  • Depositions. These are face-to-face sessions in which your lawyer asks questions of your spouse, your spouse's expert, or any other person your lawyer thinks may have information useful to your case. The person answering the questions has been sworn to reply truthfully. A court reporter records everything and later provides a written transcript.

  • The witness list for trial. Depending on the jurisdiction, you may or may not be required by law to submit a list of witnesses you intend to call. The other side can always demand a list and most judges will order the parties to exchange lists. If demanded by the other side or ordered by the court, you must submit a witness list. If you fail to submit your witness list to the court and the other lawyer by a certain day before the trial, you won't be able to call your witnesses at all.

  • The exhibit list for trial. This is the same deal. If the other side has made a demand or the court has ordered it, if you don't give the other side your list of exhibits by a certain date, you can't introduce the exhibits.

  • Subpoena or judicial subpoena. This is a document completed by your lawyer that is served on the holder of a particular record. A subpoena requires the holder of a record to provide copies to the requesting party. Certain records can only be obtained with a judicial subpoena, meaning a judge needs to sign the subpoena. For example, most states require that a subpoena for mental health records be signed by a judge.

Interrogatories

In a contested process, one of the most common forms of discovery is through interrogatories. Your lawyer probably has a set of standard interrogatories, which she pulls out and adapts for each case. Lawyers call these boilerplate interrogatories. You and your lawyer should review the proposed interrogatories together to make sure they focus on information that is likely to be helpful to you in preparing your case. Preparing the interrogatories and reviewing the answers you get takes your attorney time. You pay for this time.

Sometimes, interrogatory questions are not answered in the time period allotted. Failure to answer interrogatories can be a basis for bringing a motion before the court demanding the questions be answered or the violating side be fined or found in contempt. Before your lawyer files a motion, she should try and resolve the issue with the other side. Sometimes an extension of time to reply can solve the problem without the need for costly litigation.

When you fudge the truth, you have to remember just how you fudged for future reference — not an easy task, especially when you're under the stress of a divorce. You don't gain anything by playing fast and loose with the truth when the outcome has so much impact on your future.

If your spouse serves interrogatories on you through your lawyer, take some time to prepare your answers carefully. The information can be used at trial to impeach (show the witness is lying) the answering party. For this reason it is important that you answer carefully and truthfully, even if the truth hurts. If you don't know the answer, say so. Don't guess. If you answer the interrogatories one way and further discovery provides different information, you will look as if you weren't being truthful.

Depositions

Depositions are another common form of discovery in the divorce process. Your lawyer prepares a list of questions for your spouse. Then your lawyer sends a notice to your spouse's lawyer saying, in effect: “You are to show up on March 1 at 10 A.M. at my office for your deposition to be taken.” Usually lawyers have already set the date by agreement, but the notice is required by court rules. Depositions can also be used to obtain information from a potential witness, such as a person who performed a custody evaluation or valued your business.

Sometimes if lawyers haven't set the date in advance, they do the lawyers' deposition dance. One lawyer serves the other with the Notice for Taking Deposition. Then the other lawyer sends a letter saying the chosen date won't work. After a series of letters, a date is finally selected. You pay for your lawyer's time, so try to encourage him to set the date by agreement to avoid the costly back-and-forth dance.

When your spouse's deposition is taken, your spouse, your spouse's lawyer, your lawyer, and a court reporter are present. You can be present, too, if you choose. Your spouse is sworn, and she answers your lawyer's questions. Sometimes your spouse's lawyer objects to your lawyer's question and then proceeds to make a legal argument. The lawyer does this to preserve his objection. If the transcript is later used in court, that lawyer may ask the judge to rule on the objection, with the purpose of keeping that particular question and answer out of court. Everything said at the deposition is taken down by the court reporter and later transcribed for both sides and for the court.

Reasons for a Deposition

A deposition is a very useful tool because it not only allows your attorney to gather information but also affords an opportunity to see how you and your spouse act under the pressure of questioning. Many lawyers use depositions as a way to preview you or your spouse's capability (or lack thereof) as a witness. For this reason, the attorney's goal may be to see how easily you become angry or anxious under questioning. In a deposition, you are required to answer questions posed to you even if they don't seem relevant or require you to disclose personal and embarrassing information. If you are being deposed, it is critical that you stay calm and present a cool demeanor. If you cannot control your behavior at a deposition, it is unlikely you will be able to control your behavior at a trial. Many cases have been settled after a deposition because it becomes clear that one spouse is going to disintegrate on the witness stand.

Your spouse's lawyer may try to use the emotional stress of divorce against you by tempting you to argue or make outbursts that could hurt you. If your temper is flaring, take a moment to breathe deeply and think about what you're going to say before responding to a question.

Some chronic liars are exposed by the deposition; on the other hand, some good, honest folk are scared into saying things they don't mean.

Handling a Deposition

If your spouse's lawyer takes your deposition, answer the questions clearly and concisely. If you don't know the answer, say so. If you don't understand the question, ask for it to be repeated or restated. Answer only the question that's asked, and pause briefly before giving your answer to give your lawyer time to object. Do not volunteer information. Do not give narrative explanations that provide more information than needed. This may seem simple, but it can be very difficult. You may feel like you have to explain an answer. Don't! If you stick to the questions, your lawyer can give you guidance and object to questions she believes to be improper. Your lawyer can advise you not to answer a question, but your lawyer can't protect you if you blurt something out.

Discovery Can Be Costly

Discovery, or preparing for trial, is a necessary part of the divorce process, but it's also costly. Look at the number of players involved: your lawyer, your spouse's lawyer, the experts for both sides, the court reporter. All of these folks expect to be paid for their time. How much help do you need and how much can you afford? You should work closely with your lawyer to learn about the discovery tools available to you, how much each will cost and what will provide you with the most valuable information. If you are working with limited resources, make sure your attorney knows what you can afford so he can help you make the best choices. Most importantly, find out what will happen if the other side doesn't comply with your discovery demands. Forcing compliance could cost additional money that you may have to include in your budget before making a decision.

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