Family Law

Voluntary Exchange During the Divorce Process

By Joseph Pandolfi, Retired Judge
Learn how a voluntary exchange of information can ease some of the anxiety of divorce.

The Standard Process of Exchanging Information

Information that relates to any marital issues, such as financial support and property division, is subject to disclosure during a divorce. Laws in every state provide mechanisms for spouses to request information from each other—the most common being the divorce discovery process.

There are several forms of discovery, including:

  • interrogatories—written questions to which a spouse must reply, in writing
  • notice to produce (also called a document demand)—which is a written demand for specific documents that must be turned over within a specific timeframe.
  • depositions—a witness must appear in person to answer questions under oath.
These forms of discovery are not mutually exclusive—normally, an attorney can utilize one or more of them.

The information gathered through discovery is necessary for a fair disposition of your case. For example, in order to divide marital property evenly in a community property state, and make sure each spouse gets a 50/50 share, you need review financial documents to get the complete financial picture of the marital estate. And it’s important to note that in responding to any formal discovery request, a spouse will have to swear or affirm that all the information provided is true and complete.

The Downside of the Standard Process

The normal discovery process in a divorce is generally effective. The problem is that it’s also quite time-consuming. Court regulations regarding discovery vary from state to state, but generally allow at least a couple of months for completion. More often than not, a judge will extend this time period, if a spouse requests it.

It’s human nature to put off tasks, especially unpleasant ones, but if spouses wait until the eleventh hour to meet the discovery deadlines, items are often overlooked. That usually generates a back-and-forth of correspondence, and possibly requests for the court’s assistance (known as “motions”), to obtain whatever is missing. When the exchange of information drags on, so does the divorce, and legal fees can begin to skyrocket.

Saving Time and Money With a Voluntary Exchange

At the inception of a divorce, the spouses usually have some idea of what issues are involved, typically: child support and spousal support (alimony), division of marital assets, and custody and parenting rights (visitation). An experienced divorce lawyer knows what information is needed for each of these topics.

The purpose of a voluntary exchange is for each spouse to gather this information upfront, and then provide it to the other. This approach allows you to bypass much, if not all, of the cumbersome formal discovery process.

At your first meeting with your lawyer, ask for a list of documents and other information you’ll need to gather. That way, you can begin collecting these items immediately. This is especially helpful if some of the documents aren’t readily available to you. As a rule of thumb, plan on obtaining all paperwork that reflects your income, expenses and spending habits, debts and assets (including retirement account data, which you may need to get from your employer).

Attorneys usually want to see records going back at least three to five years. Since these may no longer be available online, you may have to contact your credit card company and you bank(s) to get older statements. Once you've gathered all the relevant financial information, your attorneys can exchange the documents. And if you need to supplement the initial production of information, for example, if you forgot to get documents for an old bank account, you should do so as soon as possible, rather than months down the road.

Note that you have some flexibility in how you approach obtaining information. For example, for items both you and your spouse have equal access to, you could agree to divide the lists. Perhaps one of you gets copies of joint tax returns, while the other gathers past statements for a jointly-owned credit card. This avoids a duplication of efforts and speeds up the process.

The more you and your spouse can do on your own during the divorce, the more you’ll save in legal fees. Voluntary exchange is meant to facilitate that. But remember, for the process to work, it has to be a two-way street. It assumes both you and your spouse want to complete the divorce in the shortest amount of time, and with the least expense. It’s also premised on mutual honesty in providing all information necessary to address the issues in your case.

Where Voluntary Exchange Isn't Viable

As referenced in the previous section, honesty is a keystone of a successful voluntary exchange. Without it, the concept is meaningless. If you suspect your spouse might not be completely forthcoming in providing information or is actively hiding information about assets, tell your lawyer. Don’t allow yourself to be blinded by a desire to get things over with as quickly as possible—you could end up walking away from your fair share of the marital assets. And if your spouse lies about income, you might be shortchanging your children as well, because income is the major factor in determining child support.

In these situations, let the divorce discovery process run its normal course, where each spouse provides information under oath. A spouse who leans toward deceit might be more apt to tell the truth if faced with the possibility of contempt of court or other court-imposed punishments.

Something Else to Think About

If you believe your marital situation lends itself to a voluntary exchange, you might want to consider alternative dispute resolution before filing for divorce. Concepts such as “collaborative law” and “mediation” take a less adversarial approach to ending a marriage. So consider discussing these when you first meet with your attorney. To learn more, see this article.

Be sure to consult with an experienced divorce attorney if you have any questions about voluntary exchange.

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