If your matter has not been resolved through mediation or early neutral evaluation, it’s very likely that we’re going to have to engage in more traditional litigation. If we do so, it’s nearly required that we participate in a formal discovery process. Discovery is a fancy word for just saying investigation or uncovering of information. Discovery can take a number of forms. Most often, it starts with something called a set of written interrogatories.
These are questions that we put in writing, send to your spouse, usually through their lawyer and have them answer under oath. Coupled with that, we’ll often submit a request for production of documents. We may need your spouse to produce bank records, credit card statements, mortgage documents, all sorts of other materials that we need to assemble the facts of your case. In addition, and in a very limited set of circumstances, we may take the deposition of your spouse.
I will say that depositions are relatively rare in family court. It’s different if you’re a corporation litigating against another corporation and there’s kind of a hands-off approach to things. But with family court processes, people know one another and they generally know the information that’s there.
So, depositions are relatively rare. They’re also fairly expensive and so we want to do so only if your spouse is concealing assets or doing something else that would really justify us sitting down and having a conversation with them under oath. There are also a set of admissions that we could send over, asking your spouse to either admit or deny certain facts.
Then of course, we always have the power to subpoena certain records. We can subpoena bank records or employment files, pay stub information. All sorts of material is available and we’ve got that power to subpoena it, if your spouse is unwilling to produce it.
If your spouse remains defiant, and they’re not willing to produce information or are they answer is sort of ad hoc, we can always make a motion to compel production of certain information with the court. Usually, that’s enough to motivate the other side to to do so.
Now, as part of the discovery process on our side, we may also need to answer interrogatories that are served on us. We may need to produce information that is being requested and we always encourage our clients to do so promptly and efficiently and take the high road on that because discovery can be something that is a black hole at times if we’re not careful, and that can lead to unnecessary time and expense.
Finally, with regard to the discovery process, keep in mind that we may want to retain experts to assist us through that discovery process. Either an accountant to help with financial cashflow information, or a business appraiser, or a real estate appraiser. Or a custody evaluator. Although those things are done outside of the scope of the rules regarding discovery, they are part of that discovery process.