You may know everything about life with your spouse, but the attorneys and the judge don’t. Sometimes, one spouse may not even know about key financial issues. Divorce discovery helps to fill in the gaps and collect information in a form that can be used as evidence in court.
Discovery is the information gathering phase of any lawsuit. It is the process of exchanging documents, answering questions, and disclosing information between parties and from outside sources. You may think that discovery in divorce is unnecessary, since you lived with your spouse. But often, especially if the parties have separated, one spouse has control over the important documents. Discovery isn’t just about learning the truth. It is about gathering the formally admissible evidence that you will use to inform negotiations in mediation or if alternative dispute methods fail, prove your case in court.
Discovery starts immediately when the Complaint for Divorce is filed. In recent years, the Michigan divorce discovery process has changed. Now, parties must typically exchange initial financial disclosures within 28 days of the Plaintiff being served with Defendant’s initial responsive pleadings. The court generally sets a cut-off date for new discovery requests but both sides are required to keep the information provided up to date. Generally, attorneys will try to get in discovery requests ahead of mediation so that the information gathered can be used to inform negotiations.
“Discovery” is a blanket term that covers a variety of information gathering techniques. Some of these discovery documents will come up in every contested case. Others will only be used when needed.
Discovery in every new divorce begins with the exchange of Domestic Relations Verified Financial Information Forms. This document includes the basic information about the parties and the family’s finances including:
By truthfully exchanging this information at the very start of the case, you can avoid the added time and expense of extensive discovery.
Almost every divorce discovery process will include interrogatories -- written questions one party’s attorney asks the other party about the circumstances leading up to divorce, their finances, and other relevant matters to the case. These answers are considered to be made under oath. Recent changes in the law now limit interrogatories in domestic relations cases to 35 questions. Because divorce touches on every part of your life, divorce interrogatories can be very personal. However, disclosing the answers to difficult subjects like your health, pregnancy status, or history of infidelity can be easier than testifying about them in court.
Requests to produce documents are often included with the interrogatories. This type of discovery is exactly what it sounds like: it asks you to provide copies of documents related to your case. Some documents will be attached to your Domestic Relations Verified Financial Information Form (discussed above). However, a request for production of documents can expand this information based on the circumstances of your case. Unlike interrogatories, there is no limit to the number of requests to produce. Commonly produced documents include:
A request can also include electronic “documents.” You may be asked to produce:
After you or your spouse files a Complaint for Divorce, you might have taken to the Internet to express your frustrations. When you learn about divorce discovery of electronic documents, you may be tempted to “clean up” your social media accounts by deleting bad things you’ve said about your ex. However, this is considered the destruction of evidence, and is a crime. You must preserve your electronic records as soon as you know there is a lawsuit against you -- in this case a divorce -- until that lawsuit is complete.
However, just because a record exists doesn’t mean everyone needs to see it. You are allowed to change your privacy settings on your social media accounts. What matters is that they are preserved in a way that you can produce them in response to a request for production of documents. There are ways your attorney can help you gather these and provide them in an admissible form. Talk to your attorney about the best way to produce electronic records.
You don’t have to rely on your spouse to provide all the appropriate information. Your attorney can also issue subpoenas to third parties that may have divorce discovery information. Subpoenas can direct a person to appear to testify, or they can require the production of documents and records. Common divorce subpoenas are directed at:
A subpoena can also be sent to anyone or any company with relevant information about you or your family. This can be particularly useful if your spouse is uncooperative, or you believe he or she is hiding assets. Because this information comes from third parties who aren’t invested in your personal lives, subpoenas can be useful in uncovering:
Subpoenas will come up again in the days leading up to trial if one becomes necessary. A subpoena can also summon a witness to testify in court. Your attorney may even subpoena your own friends or family, and if needed, they can use this document to get excused from work.
You may also receive another discovery document called a request to admit. While the previous types of discovery are about expanding the attorneys’ understanding of the case, requests to admit are about narrowing the issues for mediation or trial. If the parties both admit certain things to be true -- such as that the mother was the primary caregiver of the children prior to separation, or that the child has ADHD and learning disabilities -- they can be given to the judge as stipulations, and you won’t have to prove them in court.
You should read requests to admit very carefully, and respond to them as soon as possible. Attorneys will sometimes try to get you to admit more than you should -- cutting off key strategies in your divorce case. If you don’t respond before the set deadline, anything you have not specifically denied in writing will be deemed admitted.
The changes to domestic relations discovery rules have made family law depositions a more common and important part of the divorce discovery process. Until a few years ago, few family law attorneys used depositions, except in rare cases to preserve a witness’s testimony. However, now, if your case is complicated there is a good chance you will be asked to testify at a deposition to answer the other attorney’s questions about your life, livelihood, and expectations for the future, among other relevant topics.
A family law deposition should be taken seriously -- anything you say during a deposition can be used at trial. If your story changes between deposition and trial, it could weaken your credibility with the judge. You should work with your attorney to anticipate what questions will be asked, be certain you have clear answers to those questions, and practice techniques that will help you avoid making mistakes because you are nervous.
You can think of giving deposition testimony as a practice run for trial. Things won’t be quite so formal -- you may hold your deposition in one of the attorney’s offices, or online through a video conferencing software. However, there will be a court reporter there to take down everything that is said. Your attorney will also be present to object if questions are inappropriate, repetitive, privileged, or confusing. To do well during your deposition:
Since discovery is all about sharing information with the other party, you may wonder whether you can gain some advantage by not cooperating. But divorce cases don’t work like court TV. You don’t get to surprise the courtroom with damning evidence presented in the middle of the trial. By law, and under the Michigan court rules, both sides are entitled to receive anything that will be presented at trial ahead of time. This allows your attorney to prepare your best case, even while your spouse’s lawyer does the same.
If you don’t cooperate with discovery requests, it only makes your divorce take longer and more expensive. When Interrogatories go unanswered or a party refuses to produce documents, the party requesting the documents can file a “motion to compel discovery” in court. Assuming that the requests were proper, the court will enter an order compelling discovery, generally setting a deadline on the response. If you still refuse, you could be held in contempt and fined.
However, sometimes discovery requests go too far. Sometimes an attorney may ask for more than is reasonable or they are entitled to. You still shouldn’t ignore the request. Instead, your attorney can object to the discovery request and ask the court to put limits on what will be disclosed. If you think a discovery request goes too far, talk to your attorney sooner rather than later to preserve your objection and avoid the time and expense of preparing a response.
At NSSSB, our divorce attorneys use up-to-date divorce discovery techniques including electronic discovery and family law depositions. Our Southeast Michigan family law attorneys are happy to review your case and help you create a clear picture of your finances and family situation for the court. We will guide you through the divorce discovery process, making sure you meet the court’s deadlines while protecting your privacy and your interests. Click here to schedule a consultation with one of our experienced attorneys.