Discovery: Truth or Dare in a Divorce

People are often surprised at how much work they have to do to get a divorce. That’s not to say the lawyers do a lot of work as well, but there’s a lot we can’t do. Part of what we can’t do is provide information for discovery.

Discovery is part of the pre-trial process in which both sides are able to find out just what the other intends to prove and what facts can be established. You may be required to produce records that span several years, list all persons with information pertaining to the case, and more.

There are three main “tools” that are used in discovery.

Requests for Admission

The first of these are requests for admission. On their face, they look innocent enough, but in a way, they are the most dangerous of the tools. As the name suggests, requests for admission request a party to admit certain facts. For example, a requests for admission might read, “Admit that you are married to Sallie Doe.”

How is that dangerous? Well for one thing, you can’t just give a blanket denial of all requests. If you deny a fact that is later proven as true, you can be held liable for the attorney costs associated with proving that fact.

The other danger is that requests for admission are the only method of discovery that is self-enforcing. If they are not answered within thirty days, then the requests are deemed to have been admitted. So if you dilly-dally around, you may wind up admitted that you committed adultery or whatever other facts were requested to be admitted.

Requests for Production

Another method of discovery is the request for production. Officially, these are “requests for production of documents and tangible things,” but you’ll hardly ever hear them referred to as that.

Again, the name of this method pretty much explains what this is. It is a request made for the opposing party to produce documents or other items.

In some cases, this will result in boxes and boxes of paper and can become the search for a needle in a haystack. To help prevent this, documents are to be produced as they are kept in the course of business or in a manner directing the requesting party to the documents requested.

Interrogatories

Interrogatories are the only discovery method where the parties themselves have to sign the responses. An interrogatory is a written question that must be answered under oath and in writing. Because they are answered under oath, the responses can be used as evidence in the trial.

Unlike other discovery methods, interrogatories are limited in number. A party can only serve a total of 30 interrogatories upon another party.

Objections

An attorney is allowed to object to the interrogatories or requests. As a practical matter, the objection will likely not do much good in a divorce case. That is because divorces in Mississippi are decided by judges and not by juries. A professional jurist, such as a judge, is much less likely to be swayed by an improper discovery request.

It can be hard work to answer all the discovery requests, but if both parties participate in good faith, it can eliminate a lot of disputed issues and help settle many cases.

(photo credit: jintae kim)