Divorce often raises questions that neither spouse can answer on their own. What is the household really earning? Which accounts exist, and what is in them? What does the other side plan to argue about custody or support? In many divorce cases, the answers come through a legal process called discovery.
Discovery can sound intimidating, and it can involve a lot of work. But it is a normal part of many divorce cases, and understanding how it works can make the process feel far more manageable. Below, we explain what discovery is, the common tools used in a California divorce, what happens if you are served with discovery requests, and how discovery can be used strategically.
What Discovery Means in a Divorce
At its core, discovery is fact-finding. It is the process of gathering the information and documentation needed to bring a divorce case to a resolution, one way or another.
Discovery is made up of a series of requests that have to be responded to. You may be asked to answer certain questions in writing. You may be asked to produce a whole host of documents. Subpoenas may be issued to banks and other financial institutions. In some cases, the process becomes more involved and includes depositions.
Discovery is often associated with litigated cases, and it is a common part of them. But it is not limited to cases headed to trial. Even in an uncontested divorce, the parties may simply need more information before they can agree on a resolution. In those situations, discovery helps both sides work from the same set of facts.
Not every case needs it. Whether your divorce requires discovery depends on your circumstances and on what your attorney advises. That is one of the reasons it helps to talk with an attorney early on, so you understand what strategy makes sense for your case and whether discovery will be part of it.
The Common Tools of Discovery
When discovery is done in a divorce, a few tools come up again and again.
Formal Interrogatories
At a minimum, discovery usually involves formal interrogatories. These are written questions the other party must respond to. They help each side understand the other party’s contentions and gather information that may not be readily available otherwise.
Requests for Production of Documents
The next tool, which can involve a lot of work but is often necessary, is a request for production of documents. Here, the other party has to produce certain documents from a defined period of time. Depending on the circumstances, that might be the last two years, the last five years, or another period that makes sense for the issues in the case. The goal is to identify what is actually needed and what will help resolve the issues.
Subpoenas
Subpoenas allow documents to be requested directly from a bank, financial institution or similar third party. Instead of relying on the other spouse to provide the records, you have the right to get that information directly from the source. This can be especially useful when financial records are central to the case.
Depositions
Depositions are a more involved form of discovery and do not happen in every divorce. In a deposition, a person sits in a conference room and the other attorney asks them a whole host of questions. The person may have been asked to bring certain documents in advance. Depositions can involve the other party, both parties or third parties, and they may focus on financial issues or custody issues. Like every other discovery tool, the purpose is to get facts and information that help move the case toward a resolution.
Do You Have to Respond to Discovery Requests?
One of the most common questions people ask is whether they have to respond if they have been served with discovery requests in their divorce. The answer is yes. Responding to discovery is required under the law.
That does not mean every request must be accepted as written. If a request is completely unreasonable or overly burdensome, objections can be made. But even then, you generally still have to respond.
Ignoring discovery requests can create real problems. There are mechanisms in place to address a party who does not respond, including motions to compel. Those motions can lead to penalties such as monetary sanctions. Put simply, if you are in the discovery process, you cannot avoid it.
Responding properly is also harder than it may look. Most people do not know how to respond to discovery requests in a way that is compliant with the law. Some people try to handle discovery on their own and end up in trouble, often hiring an attorney anyway after the fact. If you are going through discovery, working with an attorney from the start can save you time, stress and risk.
Using Discovery Strategically
From an attorney’s point of view, discovery is not just paperwork. It is a strategic tool for getting the information needed on the issues pending in court.
If a case involves the division of property or support issues, an attorney will want all of the information relevant to those questions. For example, if one spouse’s income is in question for purposes of child or spousal support, the attorney may seek as much information as possible from the other party. That may include subpoenaing bank records so that the full picture of resources is available.
With that information in hand, an attorney can decide what questions need to be asked in court to pursue the resolution the client is seeking. Sometimes written discovery responses are not enough. In those cases, an attorney may decide a deposition is needed to get more detailed answers to certain questions.
Because every case is different, there is no single discovery plan that fits everyone. A good strategy is built around the circumstances of your case and what is needed to be fully prepared for court, with the goal of reaching the best possible outcome.
Why Discovery Matters in California
California is a community property state, which means the details of what was earned and acquired during the marriage matter a great deal. Accurate financial information plays a central role in dividing property fairly and in setting child and spousal support. Discovery is one of the main ways that information comes to light when it is not freely shared.
Discovery can also matter in custody matters, where information about each parent’s circumstances may be relevant. Whatever the issue, the purpose stays the same: getting the facts needed to move the case forward.
Conclusion
Discovery is the fact-finding stage of a divorce. It can include interrogatories, requests for production of documents, subpoenas to financial institutions and, in some cases, depositions. If you are served with discovery requests, you are required to respond, and failing to do so can lead to motions to compel and monetary sanctions. Used well, discovery is also a strategic tool that helps you and your attorney prepare for court and work toward a resolution.
If you are facing a divorce in Orange County and have questions about discovery or how it may apply to your case, Maggio Law Firm can help you understand your options and build a strategy that fits your circumstances.