Getting information from a spouse during a divorce is an important process. A person might not know whether the spouse has a retirement plan, how much the spouse has in a savings account, or the amount of the spouse’s student loan debt. “Discovery” is the process of gaining this type of information from the other party, and it’s governed by the Rules of Civil Procedure.
The most common discovery tools in family law cases are “interrogatories” and “requests for production of documents.” Interrogatories are, as their name suggests, questions the other party must answer. Document production is the more tangible counterpart, where a party can obtain copies of important papers and electronic records. Every discovery request must be answered, objected to, or both; and must be signed by the responding party under oath (and objections must be signed by the responding party’s attorney). Information learned during the discovery process can be used for settlement or litigation.
Interrogatories are written questions, and they can only be directed to the opposing spouse. If a person seeks information from someone other than a spouse, he must do so via deposition or subpoena. Interrogatories can be used to gain information for trial, or for preliminary information to help uncover other areas to which the spouse might direct additional discovery. For example, a spouse might ask the other to list all sources of income, find out that the spouse has income from a trust, and then follow-up with additional interrogatories on the nature of the trust, the spouse’s interest in the trust, and the amount of trust income, and request for the spouse to provide a copy of the trust instrument for inspection.
Interrogatories are an inexpensive way to gather information, but the cost can increase quickly when an attorney has to spend more time specially “tailoring” the interrogatories to the case. Generally, the number of interrogatories is limited to fifty.
The problem with interrogatories is that the responding party can be evasively vague, put little effort into the answers, or use them to be self-serving. It’s rare that a person is completely open and honest when answering interrogatories. This issue can reduce the value of interrogatories a great deal. However, because they are sworn under oath, an attorney can use a person’s misleading answers against him at trial.
Interrogatories must be answered within 30 days of service, or 45 days if served with the complaint at the start of the case. In some counties, discovery cannot be served until after the initial case management conference. Timing is important, because learning information early in a case can speed settlement or provide evidence for a temporary motion. But issues and information change over time, and a person might want to wait until the issue about which the information is sought becomes urgent, so the information is current. A person has an obligation to update discovery answers when information changes, but people rarely do so.
Requests for Production of Documents
Requests for production allow a spouse to obtain documents or tangible things for inspection and copying, if these things are within the “possession, custody, or control” of the spouse. As with interrogatories, these requests can be served at the start of the case, or after the initial case management conference (depending on your county), and must be answered in 30 days (45 days if served with the complaint).
The response must include the document attached, or state that inspection or copying will be allowed. Or a person may object to the request, but the objection must be specific, and the requesting party can move the court for an order to compel production. Generally copies of documents suffice, but a person runs the risk of receiving altered documents if the person doesn’t retrieve them herself.
As with interrogatories, requests for document production can only be made to the other party. If documentation is sought from others, a subpoena must be issued instead. If the subpoenaed person wishes not to comply, he can seek relief from the court, and the court can quash or condition the subpoena, or simply deny the requested relief.
If you have questions regarding this topic, then seek the advice of a family law attorney. Contact the SW&L Family Law Team at 701-297-2890 or email us via the contact form below.
The information contained in this article and on this website is for informational purposes only. Do not rely on the information on this website as legal advice.