Discovery in a Family Law Case

Discovery is one of the most important stages in a family law case (e.g., divorce, child custody, etc.). Generally, discovery is a formal process where opposing parties request, exchange, and obtain the evidence they will present at trial. The goal of discovery is to prevent “trial by ambush” – i.e., where one party does not learn of the opponent’s evidence until the trial, and thus, the party does not have time to obtain answering evidence.

Responding to discovery requests is not optional. If a party does not timely respond to a discovery request, the opposing party can request a court order requiring the other party respond. Failure to comply with a court order can have a detrimental impact on a party’s case, not to mention result in monetary fines and criminal penalties. Further, discovery requests are not limited to the parties themselves, but can be served upon people and not party to the case.

Types of Discovery

The types of discovery allowed by a court depend on the type of case; however, the following types are generally allowed in all family law cases.

• Interrogatories – An interrogatory is a written question that requires a written response. The questions are normally open-ended and require the opposing party provide articulable facts regarding specific or general events. For example, an interrogatory may ask “how long have you lived at your current residence” or “where were you on April 16, 2022.” Finally, because interrogatories require written responses, the responding party’s attorney will often counsel the party in drafting his or her response.

• Requests for Admission – A request for admission is similar to an interrogatory in that it requires a written response. However, unlike an interrogatory, a request for admission asks a party to respond with “yes” or “no” answers. Requests for admission are used to establish the authenticity of a document or the truth of a statement.

• Requests for Production of Documents – A request for production of documents is exactly as it sounds—a request that the other party turn over documents relevant to issues in the case. “Document” includes electrically stored information, not just physical information. Examples of documents requested may include tax returns, pay stubs, mortgages, healthcare documents, childcare receipts, and so on.

• Depositions – A deposition is a sworn testimony from the party or witness being deposed (the “deponent”). Depending on the case and circumstances, a deposition may occur at the courthouse or a law office. A court reporter will be present during the deposition to administer the oath and to make a written transcript and/or video of the testimony provided by the deponent. Generally, a deponent may be asked a wide variety of questions, including seemingly intrusive questions, such as questions about finances, sexual history, physical and mental health, and parenting. However, there are some limitations. For example, questions must be relevant to the case at hand and deponents are not required to provide any communications protected by attorney-client privilege.

Discovery is an essential step in a family law proceeding. If you are in the process of divorce, have been served one of the mentioned discovery requests, or have any questions about a family law matter, the family law attorneys at McNeelyLaw are happy to help.

This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.