Disclsoure and Discovery: Getting the information you need for a divorce or family court case

Divorces and Family Court cases require a lot of information because they mainly deal with factual issues (i.e., “we have XYZ accounts that need to be divided,” “Mother should have more time with the child because Father did ABC.”). Because of this, most states’ rules of family court procedure require that parties disclose certain documents to each other. This process is called “disclosure”. These disclosure rules typically require a minimum amount of disclosure, like six (6) months of bank records. Both sides should comply with their disclosure obligations so that the case can run smoothly and so that they can avoid the court sanctioning (or punishing) them for failing to comply with the disclosure obligation. While disclosure is a good starting point, many cases require more data to settle or to support certain claims.

If you believe you need more information than the minimum established in the rules, or the other party is not participating in disclosure, you can propound, or send, what is known as “discovery”. Discovery is the process of using certain court sanctioned tools to obtain additional information relevant to the divorce or family law case. Once you propound discovery on the other party, they must respond within a certain amount of time, or they may be held in contempt.

There are several types of discovery tools that accomplish different things:

  1. Uniform Interrogatories: Uniform Interrogatories are a set of standard questions established by the court that can be propounded on the other party. Uniform Interrogatories usually ask simple and relevant questions regarding issues like education, income, mental and physical issues, etc. Check your local rules for more information.
  2. Non-Uniform Interrogatories: Non-Uniform Interrogatories are a set of questions you propound on the other party. These questions can really be about anything that might hold some kind of relevance to the case. For example, in a child custody case were the other parent leaves the child go to a bar, you might ask, “how often did you call me (the other parent) to come pick up the children on your parenting time so that you could go to the bar?”
  3. Admissions: Admissions are a series of statements that the other party must admit or deny (i.e., “Admit or deny that you took all of the retirement funds.”). The interesting/dangerous thing about Admissions is that if the other party fails to respond in time, they can be deemed admitted, meaning the statements are considered true. So, if the questions are relevant to certain elements of a claim, and the other party fails to timely respond, you might be able to win without really trying the case (deeming Admissions as admitted is largely up to the judge, but it is worth a shot).
  4. Request for Production of Documents and Things: A Request for Production is exactly what it sounds like, it requests the production of documents. This is a good tool to use if you want to obtain more documents than the rules require for disclosure. For example, if the disclosure rules only required six (6) months of records, you could propound a Request for Production to the other party asking for 12, 24, or 48 months of documents (so long as it is relevant).
  5. Subpoena Duces Tecum: A Subpoena Duces Tecum is like a Request for Production, but it is issued directly to the “custodian of records,” or the person/ company that maintains the records you want. This is a good option if you believe the other party is not participating in disclosure or discovery, and the documents you want are held by a company that maintains the records. For example, if the other party refuses to turn over income information, you could subpoena their employer and request the income documents. It is then up to the employer to provide you with the information or they might be liable for their failure to do so.

You should check your local rules of family law procedure to see what kind of discovery tools are available in your jurisdiction. You should also use the local rules to determine how many questions you can ask, how far back you can request documents, and any timelines associated with propounding the discovery and responding.

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