In every family law case, your lawyer, and the lawyer for the other side, need to obtain the information necessary to assess the merits of the case, to prepare for settlement negotiations, and, if necessary, to prepare for trial. The exchange of information is called “discovery.” This typically includes a “request for production” of documents. In a divorce, this written request will generally ask for the production of financial documents about the nature, source, and extent of each party’s property, whether it was acquired during the marriage or before the marriage, as well as information about debts and income. If child custody or parenting time is at issue, sometimes lawyers will ask for school records, diaries, and other information about your children. Requests for production can be tedious to respond to, because lawyers may ask for documents going back several years. If you or your spouse has a business, the request will usually ask for a large volume of financial documents relating to the business. Each party to a divorce or other family law dispute has a legal obligation to provide information that the other side asks for, subject to certain limitations. In a divorce, if a party fails to disclose a significant asset that existed at the time of the divorce, the divorce case may be reopened, or in some cases, set aside. Many of the documents you provide, or the other side produces, may become part of the evidence the court considers at any hearings in your case.
As part of the discovery process, either your lawyer or the other side’s lawyer may ask for a “deposition,” which will take place in the presence of a court reporter. A deposition is where one of the lawyers questions a witness. The witness is under oath and testifying as if the witness was in court. The main purposes of a deposition are as follows: (1) to gather facts about the case; (2) to assess how well the deponent would likely perform as witness if the case went to trial; and (3) to ensure that important questions are asked under oath. If there is a trial, and the deponent answers a question in a substantially different way than he or she did at deposition, the trial court will likely question whether the deponent is truthful.
Depositions can become expensive, because both parties are represented by attorneys, and the court reporter will make a record of everything the deponent says. If the deposition is “transcribed” into a written document, the court reporter will likely charge by the page for the transcription.
Sometimes, you or the other side’s lawyer may ask for additional information in a document called “requests for admissions.” These are in the form of statements of fact, which must be either admitted or denied. If the statement is admitted, that eliminates the need for further proof on that issue.
Another common discovery tool is a “subpoena,” which is used to obtain records that may help your case, but which the other side will not or cannot produce. The most common examples of this are subpoenas seeking bank records, credit card records, and information from an employer.