There are legal terms that are used in relation to a divorce that we just don’t hear talked about much in day to day life.
Discovery is one of those terms. Sure, we know what discovery is and most of us have probably spent an evening watching Shark Week on the Discovery Channel. But the word has a different meaning when it comes to a lawsuit. In today’s blog post from the Law Office of Bryan Fagan, we will introduce this topic and discuss what it means how it can impact your divorce case.
Basically, discovery is a process related to civil cases that allows both sides to inquire about information from the other side. This information can be statements, responses to yes or no questions and/or document requests.
Specifically, the discovery has an eye on the trial phase in a case. Both you and your spouse are legally entitled to know what evidence is going to be presented in a trial by the opposing party. Television dramas where a “surprise” witness or piece of evidence is pulled out for use in the last possible minute is not based in reality.
What discovery really does is create a sense that in order to try your divorce, you and your attorney are going to have to work extra hard to prepare.
Searching through boxes of documents, computer files and reviewing statements from your spouse would lead many to believe that attempting to settle your case outside of a trial is more advisable. This is exactly what the discovery process is intended to do- encourage settlements and discourage litigation.
What can you get in discovery….
There are rules that your attorney and that of your spouse must follow in requesting information from one another. The key concept to understand is that only relevant information may be sought in discovery requests. Asking for off the wall information or documents that are wholly unrelated to the divorce will likely result in your request being met with a denial by your opposing party based on the requested information being irrelevant to your divorce.
If you plan on filing for a divorce on your own without an attorney it is unlikely that you will submit discovery requests to your spouse, but if you plan to it is necessary for you to read the Texas Rules of Civil Procedure to learn how requests can and should be made. I would recommend, however, that if you have a divorce wherein you need to request documents, your best bet is to hire an attorney.
Attorneys and their staff will assist you in sending out discovery requests to your spouse and answering discovery sent to you. What’s more- if your spouse does not respond to your requests for discovery and does not request an extension to respond to the questions, discovery responses are due 30 days after the requests were made. If you do not get responses back your attorney may agree (with your permission) to request a hearing before your judge in order to compel your spouse to produce the information.
You need to send your discovery responses to….
It is not standard procedure to file your discovery responses with the court. You will need to send your discovery responses to your spouse’s attorney within the thirty day time period for most divorces in Texas.
If you are not able to submit your responses within this time period your attorney should speak to the opposing lawyer to request an extension of some sort. Usually, that same extension will be provided to your spouse.
The types of discovery requests are…
Requests for admissions
These are pretty straightforward requests that can be made to you (or by you) in your divorce. Basically, you are being asked to either admit or deny facts that are relevant to your case. You can answer the question or offer an objection. There are multiple grounds on which you can object to a Request for Admissions and your attorney can discuss them with you should the need to arise.
Request for disclosure
These are basic biographical questions that are asked of you, at least initially. Your legal name, the theories that you are basing your case around the names and phone numbers for any potential witnesses that you will call in a trial
Request for production and inspection
This is the truly time-consuming portion of discovery- responding to requests for production. You are allowing the other side to review these documents in order to prepare their case for trial but also to help prepare for trial. Documents like tax returns and bank statements, emails, text messages, and other electronic means of sending and receiving information are all fair game within a request for production.
In today’s day and age, many attorneys will submit their client’s responses to a request for production/inspection via an electronic method of some sort. Our office will often upload documents to the “cloud” and will provide opposing counsel a link where they are granted access but not the ability to edit the information. The old fashioned tried and true method of sticking documents in boxes is perfectly acceptable as well but can be labor intensive and time consuming to sort through.
At most 25 interrogatories can be submitted to your spouse in the majority of Texas divorces. These are to be taken as responses under oath and in fact, you are required to sign your name to them under an affidavit listed at the conclusion of your responses.
Will your case involve a deposition?
A deposition is an interview that is either done orally or via written questions. Depositions can be conducted of you and/or your spouse, or any non-party whose testimony is relevant to your divorce. These are not done in most divorces but can be important in those situations where a person is not able to testify at trial for any reason. It is important to note that your testimony in a deposition will be taken under oath. If you are asked a question in a deposition and then again in the trial, your answer should be the same. If they differ, it is likely that the opposing attorney will point out how your responses differ. You will then need to justify any discrepancy.
Difficult. While I’ve done my best to explain the general concepts that surround this topic you should make no mistake that discovery is not something that most non-attorneys are equipped to do effectively.
That’s not to say that the concepts are too difficult for you to grasp, but there are so many intricate and tedious rules that relate to discovery it is very easy to violate them. If your spouse has an attorney and he/she submits requests upon you it is not an excuse to make a mistake or neglect something because you didn’t know a rule.
If you or your spouse believe that it is necessary to submit discovery in your divorce you do not have an uncontested divorce. In that situation, I would strongly recommend that you hire an attorney to assist you in both requesting and responding to discovery.
While discovery requests being submitted upon you does not necessarily mean that your case is going to trial, what it does mean is that you should not trust yourself to handle the process on your own. Hiring an attorney is a good idea to both take some of the pressure off your shoulders and to best ensure that your goals are met within your case.
Questions about discovery or divorce in general? Contact the Law Office of Bryan Fagan
If you have any questions about discovery and divorce please contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations six days a week with one of our licensed family law attorneys. We take a great deal of pride in responding to and answering questions posed by the people in our community just like you. We provide a comfortable, pressure-free environment where you can speak your mind and have your concerns addressed by an attorney with experience in Texas divorces.