Family Law

Divorce Discovery: Request for Production of Documents

By Joseph Pandolfi, Retired Judge
Responding to a request for documents from your spouse’s attorney may seem overwhelming, but failing to comply can have serious consequences.

The Concept of “Discovery”

A Request for Production of Documents (often referred to as a Notice to Produce) requires a spouse to provide the other spouse with certain documents for review. But it’s only one aspect of a larger legal concept known as “divorce discovery,” which is basically an information-gathering process. In divorce, the normal focus of discovery tends to be on the marital finances, but it’s by no means limited to that specific area.

Some additional discovery methods are:

  • written interrogatories (questions spouses must answer under oath)
  • requests for admissions (a document that compels spouses to admit or deny certain facts, like whether they sold a particular item for a certain amount of money), and
  • depositions (proceedings in which a spouse testifies under oath about various aspects of the marriage, usually at one of the attorney’s offices).

State court rules provide timelines in which spouses must respond to discovery requests, and the time can vary from state to state. For a standard contested divorce (one without complex issues, like dealing with several family-owned businesses), the discovery period will probably be around four months. However, the judge on a particular case will likely set specific time periods for each aspect of discovery, within the broader discovery timeframe.

What to Expect in a Request for Production of Documents

Other than privileged information, such as correspondence between you and your attorney, divorce laws normally allow a spouse to seek a wide array of marital documentation in a Notice to Produce. This can encompass all the subjects which the divorce case addresses. The notice will advise you how long you have to produce the documents. Court rules typically govern this time period.

Financial Issues

A standard issue in a contested divorce is the division of property, both real (your house and any other real estate) and personal (bank accounts, cars, furniture, and the like).

Get ready to dig out deed, mortgage, lien, and property tax documents relating to whatever real estate you have an interest in, either in your name alone, or with others. Likewise, start gathering bank statements. It’s not unusual for a document request to seek statements going back five to 10 years. (Some attorneys may even look for paperwork from the beginning of the marriage.)

Examples of other financial documents you may have to provide are:

  • investment account statements
  • pension account statements, including 401(k)’s, IRA’s, and so on
  • personal tax returns
  • business tax returns
  • documents showing proof of your interest in any business and showing the value of the business
  • loan statements, and
  • credit card statements.

This is hardly an exhaustive list. If a document is pertinent to the marriage’s finances, expect your spouse’s attorney to ask for it. Spousal support and child support are other common matters a court may need to address in the divorce. So be prepared to produce documentation relating to all your sources of income and your monthly expenses.

Grounds for Divorce

Today, the grounds (legal reasons) for divorce usually aren’t as contentious as they were in the past. This is the result of states enacting “no-fault” grounds (such as irreconcilable differences, or the irreparable breakdown of the marriage). Although other aspects of the divorce may be contested, many people choose no-fault grounds to end the marriage.

However, some of the older “fault-based” grounds (such as adultery, extreme cruelty, and desertion) are still available in many states. And if a spouse chooses to base the divorce on one of those grounds, anticipate that the Notice to Produce will request documentation that will help prove it, like phone records and police reports.

Custody and Parenting Time (Visitation)

If custody is truly a bone of contention, it’s often the most bitterly contested issue in a divorce. A spouse may leave no stone unturned in attempting to find evidence that the other parent is somehow unfit to provide a home for the child, or to make major decisions regarding the child’s upbringing and care.

If spouses have a history of substance abuse, a criminal record, or a medical condition that could be viewed as adversely affecting their ability to safely interact with the child, any documentation relating to those problems is fair game in a Notice to Produce. Obviously, this impacts parenting time as well as custody. For example, proof of active substance abuse can be used in support of a requests for supervised visitation with a child.

Must You Comply with a Request for Production of Documents?

Yes. The word “request” is something of a misnomer. A Notice to Produce is really a court-sanctioned demand. That said, if a particular request is unduly burdensome, your attorney can object. For example, asking for credit card statements from the inception of your 40-year marriage is probably over the top.

If your spouse’s attorney won’t back down, the court may have to decide how much information you must supply. But once it makes its decision, you must abide by it. If you don’t, a judge can hold you in contempt of court. That could subject you to a fine, and possibly incarceration.

A Word About “Documents”

You should understand that a Request for Production of Documents isn’t limited to pieces of paper. In this digital age, a request for documents also covers emails, instant messages, and any other information that’s stored electronically. There’s even a growing trend to include metadata in the mix. These details, embedded in a file, can show how and when someone may have altered the file’s contents.

If you’d like to learn more about Requests for Production of Documents, you should speak with an experienced family law attorney in your area.

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