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The Divorce Encyclopedia
Discovery; Pretrial Discovery


Term Definition Discovery; Pretrial Discovery - procedures used to collect information that pertains to the credibility of the opposing party’s case.
Application in Divorce Discovery is the way the plaintiff prepares for a case by requesting pertinent information from the defendant, and it is a way of making known what was previously unknown.

Discovery is often time consuming and expensive, but it is impossible to go to trial without it.

As it applies to court action, discovery includes the following: request for financial statements; the production of documents and things; interrogatories (the answering of written questions) and depositions (statements made under oath); depositions, subpoena and subpoena duces tecum (which are the subpoena of third-parties), keeper depositions (which are similar to subpoena duces tecum); request for admissions (similar to interrogatories but requiring yes or no answers); motions for physical and mental examination; and request to enter land and notices.

In divorce actions, discovery is particularly important because accurate classification and valuation means that the marital estate may be accurately valued for distribution. At the same time discovery may be difficult because the parties "who at one time had an intimate relationship ... are now engaged in a fight and the litigation process is used as an arena to resolve personal problems."

In general, in divorce actions discovery involves request for information from the opposing party, who is the spouse; third parties, who are relatives such as mothers, fathers and siblings; and corporations, which generally means business in which one spouse has a financial interest.

Sweeping discovery requests may be considered burdensome, but a request that asks for "any and all documents" related to a specific purpose is not. In the case of a divorce, discovery may include, but not be limited to, everything a person owns and owes, including but not limited to, checking and savings accounts, mutual funds and money market accounts; real estate records, including the marital home and second homes and unimproved land; personal property, such as automobiles, furnishings, collections (art, stamp, coin); stocks, bonds, annuities, retirement plans, including pensions and profit sharing; accrued vacation time, medical savings accounts; other valuable personal property, life insurance and season tickets; and on the debt side, this includes, but is not necessarily limited to, records of credit cards, vehicle loans, mortgages and home equity loans, promissory notes, student loans and other debt.

Courts generally will not order discover in area protected by privilege, either statutory or common law, including materials protected by attorney-client privilege.

In divorce actions, the parties sometimes fail to cooperate with legitimate discovery requests. In the face of discovery violations, courts bring sanctions, which is punishment for improper behavior. When problems develop, the first step -- and one required in some jurisdictions -- is for one lawyer to contact the other and attempt to resolve the problem without sanctions. That failing, the next step is to file a motion to compel if the noncompliance persists. After a notice and hearing, the court may sanction the obstructing party.

In uncontested divorces, there is no discovery.

The term discovery may also be used for the interview procedure between the attorney and the client at the initial meeting.

See Sanctions.

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