How to: Formal Request for Discovery in Family Law
By Teo Spengler
Updated March 30, 2020
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It isn't likely you will pass through the straits of divorce without discovering something about your spouse's character and your own, but the legal term "discovery" refers to something more formal: the procedures available for getting questions answered in a lawsuit. Trust is one of the first casualties of a divorce, making information-gathering difficult; the discovery process fills that gap by requiring each party to provide true information under penalty of perjury, but only if the asking spouse follows state procedures.
Disclosure is not a formal request for discovery, yet the disclosure process is a central method of obtaining information in a divorce in some states. California, for example, requires each divorcing spouse to fill out disclosure forms and provide them to the other spouse. The preliminary disclosure form includes information about salary, bank and stock accounts and other assets, as well as amount and types of debt. Copies of supporting documents must be attached for the disclosure to be complete. During the divorce, each spouse must update his disclosure forms to keep them current. If you live in a state requiring divorce disclosure, no request is necessary; the procedure is mandatory and may well eliminate the need for more formal discovery.
If you do not obtain the information you require from your spouse in disclosure, you proceed to formal discovery requests. Four principal types of discovery requests are used in most courts: interrogatories, requests for production, requests for admission, and depositions. The most efficient type to use depends on the information you wish to glean, but often several types are used together to obtain the broadest range of information. Writing up discovery requests can be difficult for a layperson to undertake as each state has its own specific rules about the form each discovery method must take. Enforcing a discovery request if your spouse does not answer requires motions to the court and is usually best left to an attorney.
Interrogatories and Production Requests
If you have specific, detailed questions you need your spouse to answer, Interrogatories may be the place to begin with formal discovery. Interrogatories are written questions from one divorcing spouse to the other, and they must be answered under penalty of perjury. The questions do not need to be about finances; they can touch on any issue relevant to the divorce action including living situation, health and employment. In states that do not require disclosure, a party often combines interrogatories with a request for production of documents. This request requires the party answering the interrogatory to produce true copies of documents that support the interrogatory responses, such as bank statements, property titles or medical reports. The required form of these documents varies among states. In many, the discovery requests are mailed to the party rather than being filed with the court. They are only brought to the court's attention if a party does not answer them fully.
Request for Admissions
Another method of formal discovery is request for admissions. A request for admissions is a list of facts you send to your spouse to admit or deny under oath. For example, you might ask him to admit that he owns certain assets or that certain documents are genuine. Requests for admissions can save both parties a lot of time since whatever facts are admitted do not need to be argued about at the divorce trial. As with other types of formal discovery, the rules and procedures vary from one jurisdiction to another, so it is crucial to understand the requirements of your court before you send out requests for admissions.
Depositions allow you to ask your spouse -- or any other witness -- direct questions in a face-to-face interview. In a deposition, you or your attorney summon the party or witness and ask them questions that relate to the divorce. Responses must be made under oath. Both the questions and answers are recorded and can be used at trial. This procedure can be expensive since attorneys are often involved for both parties and the testimony must be transcribed. You initiate a deposition by giving the person to be questioned appropriate notice. If the person is not a party to the action, you generally have to arrange for a third party to present the person with a Notice of Deposition.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.