When a divorce proceeds to trial, family law attorneys must weave testimony, facts, and documents into a compelling case to benefit their client. Attorneys must have comprehensive information to do this effectively, and the discovery phase of the divorce process makes this possible.
Discovery is the phase of divorce where both sides fully disclose and share information about their assets, debts, and other financial information that will be relevant in their divorce case. It offers a variety of tools that can be utilized to gather detailed information related to the divorce case to help determine things like property division, child support, and spousal support.
While discovery is designed to level the playing field, it can also provide an essential legal foundation for any evidence that may be presented in court or during a settlement negotiation.
Preparing for Discovery in a Virginia Divorce
After initiating a divorce, attorneys for both sides will begin to exchange information with each other about their client’s financial life and the nature of their relationship. This requires both spouses to share their financial records and personal data honestly and forthrightly, enabling both sides and the court to have a complete picture to evaluate the situation and make fair decisions. Failure to be transparent can result in serious consequences and even work against the withholding spouse for the rest of the process.
While every divorce is unique, the discovery process can involve some of the following things.
Formal Disclosures
A divorce relies on honest and complete financial data. In most states, divorcing spouses must fill out financial affidavits, which will be shared with the other side. Disclosure forms will typically ask for information about any sources of income, assets, liabilities, expenses and supporting evidence for the answers.
Documents should be gathered in support of the financial affidavit. These can include:
- Tax returns or pay stubs, even if spouses filed jointly
- W-2 statements
- 1099s
- Bank statements
- Credit card statements
- Retirement account statements
- Investment account statements
- Loan documents
- Insurance documents
- Mortgage documents
- Real property appraisals
- Business appraisals
If the divorce has been particularly contentious, spouses may also want to gather copies of all correspondence between them such as texts and emails, or the names of potential witnesses to testify on their behalf.
Both attorneys will review both sets of disclosures to look for inconsistencies, build a case for trial, or better negotiate terms for their client for a settlement.
Interrogatories
Interrogatories are a series of written questions that lawyers compile to get further information on the other spouse’s background, income, assets, debts, or other information. Answers to interrogatories are also in writing, and these written responses are made under oath.
Request for Admissions
Similar to an interrogatory, a Request for Admissions (RAF) is delivered to the opposing party in question format, but instead of open-ended questions like interrogatories, an RAF asks pointed questions that must be confirmed or denied. These responses are also made under oath.
Notice to Produce
If either attorney determines that information is still missing, they will ask the other party to provide it through a Notice to Produce. That party is then obligated to gather as much of this information as possible if it is in their control.
Subpoenas
Both attorneys can compile a list of individuals or entities with essential information relating to the marriage. Some subpoenas will require a person or entity to testify at the trial or by deposition. Others can be used to obtain records from third parties, such as financial institutions or employers, that may be relevant to the case.
Depositions
During a deposition, a spouse or witness gives oral testimony under oath, typically in the presence of both attorneys. Depositions allow for more in-depth questioning regarding information that was previously provided by other means. Transcripts are kept of everything disclosed, and these are shared with the other party.
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Is Discovery Necessary?
Discovery is a foundational part of how the court system works and an essential part of the litigation process. Divorcing couples relying on the court to resolve the terms of their divorce must participate in the discovery process.
However, discovery takes time and can be costly. Some parties choose to waive discovery and settle in the interest of money and time. While this may be one spouse’s choice, it does not exempt them from having to respond to the other party’s requests for information. And for those who waive discovery, they may get inadvertently cheated out of their rightful share of marital assets, child support benefits, or spousal support if their spouse is hiding assets or has not been forthcoming about their finances.
What if One Spouse Won’t Cooperate During Discovery?
The discovery process is designed to ensure fairness and transparency during the divorce process. Noncompliance hinders the process, can have serious legal consequences, and even lead to adverse rulings against the noncompliant spouse.
Consequences for noncompliance can result in
- Being found in contempt of court
When one spouse does not comply with discovery, they can be held in contempt of court, resulting in fines, additional attorney fees, and jail time in extreme cases. If the court issues a Motion to Compel, failing to do so can escalate the severity of penalties. - Negative inferences by the court
The court could make presumptions that the spouse’s noncompliance may be because they are hiding assets or other information. This can result in unfavorable rulings against that spouse in the court’s decisions. - Reduced credibility
Noncompliance can damage the spouse’s credibility in the eyes of the court, having a negative impact on key decisions. It can also weaken that spouse’s position during settlement negotiations. - Monetary consequences
Not only will noncompliance prolong a costly litigation process, it could also result in the court ordering that spouse to pay the other party’s attorney fees and costs. - Default judgment
In extreme cases, noncompliance during discovery can result in a default judgment against the noncompliant spouse, with the court ruling in favor of the other party.
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Skilled Legal Representation in Virginia
Having transparent access to your spouse’s financial information can significantly affect the outcome of your divorce in matters of property division, child support, and spousal support.
At Melone Hatley, P.C., our highly experienced Virginia family law attorneys work diligently to ensure our clients get their fair share under the law. Call us at (877) 416-5071 or schedule a free consultation through our contact form. We have convenient locations throughout Virginia in Virginia Beach, Chesapeake, Fairfax, Loudoun, Reston, and Richmond, as well as Columbia, South Carolina, and Tampa, Florida.
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