As part of the discovery process during divorce, Civil Rules of Procedure provide mechanisms by which parties may obtain information from the other party and from third parties.
The most common tools in the discovery toolbox are interrogatories request for production, Request for Admissions, and Depositions.
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What Happens During The Discovery Phase In A Divorce
Interrogatories are questions asked by one party in a divorce of the opposing party. Many jurisdictions limit these numbers to approximately 40 questions without leave of court.
Generally, these divorce discovery questions cover the assets, debts, and faults of a divorce. Questions must be answered truthfully under a sworn statement.
Request for Production provides the opportunity to request documents not otherwise available to one party. Examples would be tax returns, proof of income, retirement account information, banking accounts, and credit card statements.
Requests for Admissions allows a party to ask the other to either admit or deny a fact. For example, “admit or deny that you have had sexual relations with any person other than your spouse during the marriage.” Requests are bound by tight time limits and must be answered within those time frames or otherwise they are “deemed admitted” by the court.
Finally, round out the more common tools available to attorneys. Depositions are questions asked under oath, in the presence of a court reporter. Depositions can be taken of parties or non-parties.
All elements of discovery have importance only weighted by their use. Together or individually, each discovery lever can be a valuable tool pulled and ultimately used by savvy legal practitioners
To understand discovery in-depth in relation to the divorce process in Alabama, it is important to step back and differentiate uncontested from contested divorce.
Uncontested Divorce
As the name suggests, uncontested divorce involves parties that are able to resolve issues amicably outside a court. Uncontested divorce proceedings have things like visitation, custody, and support agreed upon.
The same applies to how liabilities and assets are divided. When filing, agreements on different issues are submitted together with other documents required by a court overseeing marriage dissolution.
Contested Divorce
In a contested divorce, couples can’t agree on one or more major issues. Such a divorce involves a contest that begins with a complaint in court. When grounds for divorce are established, basic provisions for requested relief are set. They include debt division, property division, custody, alimony, visitation, and other related matters.
The complaint about divorce is served to a spouse via mail, a private process server, or through the sheriff’s department. Once a spouse is served with a complaint, he/she has a month to respond. He/she can hire a divorce attorney if they wish to do so or respond in person.
Before the 30 days are over, parties can choose to start settlement negotiations or try resolving the matter in an uncontested manner.
If a spouse fails to answer a complaint or defend themselves against the complaint, the other spouse can file a default judgment application.
Discovery
The Discovery process comes after a complaint is filed and a spouse has answered or filed a counterclaim. As mentioned, the discovery process is a question asking and answering session. The process also involves filing certain documents related to the underlying issue/s.
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The Role Of Divorce Attorneys In A Discovery Process
Divorce attorneys are important in the discovery process since they handle all the necessary legal work required to support your position. This includes but isn’t limited to obtaining documents, gathering evidence, and taking the deposition.
In a discovery, parties can still try negotiating a settlement. This can be done through mediation or between attorneys representing both parties. However, if an agreement can’t be reached a trial will be triggered where a judge will decide how different issues will be handled.
If a divorce process proceeds to trial, you need a seasoned divorce attorney to argue out your case and get the best outcome. Since judges have the authority to decide critical issues, you can’t compromise on legal representation. The divorce process ends after a judge has made a decision. However, a spouse can appeal a judge’s decision which may drag the process for approximately 1.5 months.
A contested divorce takes the entire process to stressful levels. It is financially and emotionally stressful to contest a divorce. However, given the nature of divorces processes, most couples aren’t on good terms and usually focus on getting back at each other.
If there is no agreement, a formal discovery process sets the stage for a trial. Besides exchanging information, divorce discovery can unearth information that should have remained private. Courts need concrete evidence, and every party must provide answers to hard questions or claim an offer. Provision of documentation, pictures, videos, emails, social media posts, recordings, etc., is all part of discovery.
Types Of Divorce Discovery Processes
Interrogatories
Interrogatories are simply written questions that need to be answered when one is under oath. The questions are generally in-depth, touching on everything from work history and education to assets, income, retirement policies, insurance policies, and a person’s background. Interrogatories are supposed to be answered in consultation with a divorce lawyer.
Requests For Admission
In this divorce discovery process, statements or questions are admitted or denied. This divorce discovery process is crucial since admission makes it possible to alter a story. Failing to respond to a question within 30 days is usually considered an admission. The essence of admission is identifying issues that aren’t disputed. The process also results in information that can be used during a trial.
Requests For Documentation
Discovery can also involve a formal request for specific documentation such as physical evidence, witness lists, financial statements, written statements, etc. The requests can be for specific documents or a category of documents with information relating to the divorce.
Depositions
The divorce discovery process can also involve the collection of sworn testimonies from involved parties. Depositions are usually done at a lawyer’s office in the presence of a court reporter. Witnesses unable to attend a trial can provide sworn depositions instead of physical testimonies.
An ex-spouse who gives sworn testimony in a deposition swears to be truthful. A lawyer representing the other spouse usually asks questions, and the court reporter records everything. In most cases, depositions are recorded via video.
Spouses and other parties supposed to take part in depositions are scheduled using a special notice or via agreements between lawyers. Parties can also be compelled via subpoenas. Depositions can be used to disqualify witnesses if they give a different testimony than what they gave in the deposition. Most divorce cases will involve multiple subpoenas that can include witnesses to events in the past between divorcing spouses.
For instance, an individual who witnessed domestic violence can be compelled to give a testimony using a subpoena.
The types of subpoenas used for divorce discovery vary. In most cases, they can either command a person to appear and testify or request documents. Subpoenas can be issued to institutions compelling them to provide some financial documents relating to the case.
In summary, divorce discovery is part of the complex divorce process. As the term suggests, discovery is about uncovering information and evidence that can be used when the case goes to trial. Considering the repercussions of testifying under oath and sharing sensitive information, the importance of seeking legal advice from a seasoned Alabama divorce attorney can’t be overlooked.
You shouldn’t respond to any requests for information, subpoenas, or attend depositions without a lawyer, or you risk losing custody and other negative outcomes of handling a divorce process alone.
It’s not an easy process, but with the right family law attorney, you can leverage the way your divorce is treated and come through the experience more prepared. Talk to a professional from Summit Family Law by calling us at (256) 859-7277 or contacting us through our online form.
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