What is Divorce Discovery, and What is Included?
Divorce means making many decisions: how the couple’s children will spend time with each of them, which spouse will receive which assets and debts, and whether one spouse will need to pay alimony to the other. And, of course, to make sound decisions, it’s important to have accurate information upon which to base those decisions. The need for that information is the reason for divorce discovery.
In a Utah divorce, the parties are required to make some mandatory initial disclosures to one another. These include disclosures regarding witnesses and evidence they plan to present in their case. Divorcing spouses must also provide a Financial Declaration to one another.
As the name suggests, mandatory disclosures include information all divorcing spouses are required to provide without being asked for it. But in addition to this information, spouses have a variety of options for seeking out additional information that will help them settle their divorce (or make their case at trial). These tools, collectively, are divorce discovery.
What is Discovery in Divorce?
Based on information received in the Financial Declaration form or other mandatory disclosures, you and your attorney may decide it is necessary to dig deeper and make additional requests for facts, documents, or materials. You may also believe that your spouse is not being entirely truthful in their disclosures, and pursue discovery to further investigate their claims. Depending on what you are seeking to learn, you may use one or more of the following discovery methods.
Interrogatories are written questions that must be answered under oath. Utah, like many states, limits the number of interrogatories permitted; otherwise, an attorney could send the other side hundreds of questions to wear them down or trip them up. The Utah limit of 10 interrogatories (including discrete subparts) forces parties and attorneys to target their questions to information they genuinely need. Interrogatories are answered under penalty of perjury, so recipients must answer honestly.
Requests for Production of Documents
As the name suggests, this discovery method allows a party to request the other side to produce documents that are relevant to the case, from paystubs to credit card bills and bank statements to invoices for child care expenses and more. These requests encompass more than written or typed documents; they can include things like photographs, audio or video recordings, and even social media posts.
Requests for Admission
Requests for admission of facts are simply a series of brief statements that the person to whom they are directed must admit or deny. Like the other forms of discovery, requests for admission are completed under oath and under penalty of perjury. They are particularly useful if you have information about the recipient that, if confirmed, would be damaging to their position.
For instance, if you knew or suspected that your spouse committed adultery with a certain person at a specific date and location, you could ask them to admit that fact. They would have three options: admit the damaging fact; deny it, and commit perjury; or decline to answer. If an individual fails to provide a response to a request for admission of facts within the time allowed (28 days in Utah), the statement is deemed admitted.
A deposition, as you may know, involves one party’s attorney asking questions of the other party’s attorney under oath, outside of a courtroom. The back-and-forth is recorded by a court reporter, video, or both. There are relatively few limits on what can be asked in a deposition, although the attorney for the person being deposed may object to the relevance of certain questioning.
Depositions are the form of discovery with which people are generally most familiar, as they are often featured on legal dramas. However, they are typically used much less often than other discovery methods, as they are more costly and involved, and usually not needed. Some combination of the written discovery methods above is sufficient for most divorces. Depositions may be needed in complicated divorce matters, such as those involving complex asset division.
If your attorney has reason to believe that a third party may have information or documents that are relevant to your divorce matter, she can issue subpoenas compelling them to produce those items.
Carefully targeted discovery can uncover information that is beneficial to your case. Though discovery methods, particularly depositions, involve some expense, that expense should be viewed as an investment in reaching an informed settlement in your divorce, or in thorough preparation for trial.
It is important to confer with your attorney to discuss what discovery she believes is needed in your case, and why. Your attorney should pursue any information needed for your case, but avoid unnecessary discovery “fishing expeditions” that increase your legal fees without adding any real benefit to you.
What Happens if a Party Fails to Comply With Discovery?
If a party fails to comply with Utah divorce discovery, there are a number of measures the court can take. Typically, the first step after a failure to comply with a discovery request is to file a Statement of Discovery Issues. The court can then order the non-compliant party to answer the discovery request, and may order them to pay the other side’s reasonable expenses in pursuing their compliance.
In the case of a Request for Admission of Facts, it is not necessary to file a Statement of Discovery Issues, because, as noted above, the statements are deemed admitted if not responded to within the time allotted. However, a court can order a party to pay the other side’s reasonable expenses in proving the truth of a matter they failed to admit.
If the court orders a party to comply with a discovery request and the party still refuses to comply, the other side may request further action by the court. The court may then impose various sanctions as appropriate, including requiring them to pay a portion of the other side’s attorney fees or preventing the noncompliant party from advancing certain arguments.