preparing for a discovery

How to Prepare for Discovery

Discovery is an often painful legal process, which takes place during a contested divorce proceeding. Each side in the divorce is required to answer a list of questions, called interrogatories, under oath. The questions are drafted by the respective lawyers for either party, and are usually about financial issues—wages, assets, debts, and so on. Through their lawyer, either party can require the other to produce documentation, such as pay stubs and bank statements.

The process feels very much like an interrogation, aptly enough. Other individuals with pertinent financial information, such as friends, family, and business associates, may also be called upon to testify. Everything is recorded in physical form by a court stenographer. Given the privacy of such information, the process is painfully uncomfortable, and often heated. There are a few things to bear in mind when facing the discovery process.

Be Prepared to Show It All

As uncomfortable as it is, there are few secrets when it comes to discovery. The purpose of discovery as a legal process is to show the courts the truth about either spouse’s financial assets, so that they may be divided fairly. However, it is not unheard of for divorce attorneys to work with their clients in trying to slant this information in their clients’ favor. They will look for hidden or mismanaged assets, as the perception of dishonesty or bad money management skills may impact the court’s decision.

It is important to simplify, and to be transparent, during this phase of the divorce proceedings. This is a bad time to make new investments, for example. Cast in a certain light, a new investment which has yet to pay out can be made to look like bad management skills. Any debts which are outstanding should be paid off, to the extent that such is possible.

Pursue Informal Discovery if Possible

Informal discovery is a less rigid discovery process, which is hashed out in private between the concerned parties, without direct legal oversight. Loosely comparable to “settling out of court,” it is widely recognized as the best way to save money during the discovery process. It is also far less invasive, and is typically much less damaging to future relations between the former spouses.

Formal discovery is expensive in itself. It can last for months, and involves the drafting of numerous legal documents by either side. It encourages suspicion, mistrust, and bitterness. These aren’t a desirable component of the process, but they’re nearly unavoidable. With the constant “courtroom gamesmanship” of objections and assertions, discovery is uncomfortable for either party, and the informal process is usually preferable for all concerned.

Assert Your Privileges Whenever Possible

Finally, a person undergoing the discovery phase of a divorce proceeding has certain legal privileges. They may object to questions which are put to them, based on a variety of criteria. If the question is obviously designed to annoy, is overly burdensome or broad, or is too far off-topic, an objection can be raised. The occurrence of too many sustained objections looks bad for the issuing party, and the firm assertion of one’s privileges in knowledgeable fashion may cause the opposing lawyer to re-frame their inquiries into a less probing approach. This is a matter to be discussed with one’s own divorce lawyer, to be clear on what is and is not covered by the process of objection.

The information in this post is not legal advice—it is only legal information.  To obtain legal advice by hiring the attorneys of Broxterman Alicks McFarlane PC as your counsel, please contact the firm at info@bamfamlaw.com or 303-331-6432.

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