Family Law

Divorce Discovery: How to Get Information During Your Divorce

By Kristina Otterstrom, Attorney
If you can't count on your spouse to produce all the divorce-related information you need, the discovery process can help.

A major part of the divorce process involves exchanging relevant information, such as financial information regarding a couple's property, assets, and debts. You’d think that a married couple would know everything about each other and their shared property and finances, but all too often, that isn’t the case. Often, one spouse acted as the accountant in the marriage and the other spouse was (either by design or decision) not aware of income, expenses, spending, or savings. If one spouse is in the dark about finances during a divorce, and the other spouse won't voluntarily produce financial documents or information, any divorce settlement reached will likely be unfair or based on incomplete information.

In an effort to equalize the spouses and ensure a fair result, the discovery process is a mandatory part of nearly every divorce case. If you need information or if you have suspicions about your spouse’s infidelity, spending habits, or secret accounts, you can demand that your spouse (or third parties, like banks) produce documents and information to support your claims.

Even if you trust your spouse, the divorce discovery process can help ensure that you don’t forget to include a debt or asset when dividing your estate.

Overview of Divorce Process

A divorce begins when either spouse files a divorce petition and properly serves it on the other spouse. At that point, the non-filing spouse has the opportunity to respond or to accept the divorce terms contained in the petition. The discovery process can begin as soon as one spouse files an answer to the complaint.

Although state laws vary, at this point, most states require each spouse to file preliminary financial disclosures. You may have a temporary orders hearing in your case, or you and your spouse may go directly to mediation. Throughout this time, either spouse can send the other written discovery requests asking for employment information, paystubs, medical records, a child’s report cards, mortgage statements, credit card bills, bank account records, and anything else that's relevant to the divorce. Sometimes written discovery requests can ask for information from third parties and other witnesses and require you to obtain information from other people. Your spouse or your spouse's attorney may also take your deposition. Once discovery is complete, a judge may set a final settlement conference or schedule your case for trial.

What Information Do My Spouse and I Need to Provide During Discovery?

The discovery process typically consists of written requests as well as in-person testimony, called a “deposition.” In your written discovery requests, also called “Interrogatories,” “Requests for Admission,” or “Requests for Production of Documents,” you can ask questions about any matters that pertain to your divorce.

For example, you could ask your spouse to list all bank accounts in his or her name. This sort of question allows you to find out if there were any accounts your spouse had neglected to mention or was hiding. You could also ask your spouse to list all taxable income for the previous year and to provide supporting paystubs, 1099s, and W-2s. Having a clear idea of your spouse’s income can help you determine a proper child support and/or alimony award. You can ask for any document that you believe is relevant to your case. If questions are irrelevant or unfair, the responding spouse can file an objection to avoid answering.

Additionally, either spouse can schedule the other spouse’s deposition. You are under the same obligation to testify truthfully at a deposition, just as if you were testifying before a judge. If you have an attorney, a deposition will typically take place at the attorney’s office. A court reporter, both spouses, and their attorneys will attend. The attorney will ask questions to the spouse being deposed. Depending on the complexity of your case, a deposition may last anywhere from an hour to several hours over the course of days or weeks.

What Should I Do If I Think My Spouse Is Lying or Hiding Something?

Sometimes, one spouse doesn’t disclose everything requested during the discovery process. Whether the non-disclosure is inadvertent or purposefully deceitful, it’s important to find out the truth. Private investigators and forensic accountants are two kinds of professionals that can help uncover pertinent information during the discovery process. Specifically, forensic accountants can sift through bank records and find red flags. A private investigator may be able to help you uncover evidence of an affair. Seek out your attorney’s advice before you rush out to hire one of these professionals. In certain situations, you could be liable if a private investigator violates the law while trying to get dirt on your spouse.

The divorce process can seem overwhelming at times. It’s important to remember that honesty is always the best policy. You’re better off disclosing something uncomfortable than trying to hide it. And if you believe your spouse is hiding evidence, trust your gut and work with your attorney to get to the bottom of your suspicions. There is no room for secrecy in a marriage or divorce.

Questions for Your Attorney

  • What kinds of documents will I need to produce during discovery?
  • How can I get my spouse to disclose account information for a hidden bank account?
  • Can my spouse and I avoid discovery and settle our case without going through the entire discovery process?
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