Divorce Discovery is an important process even if your break up is civil. Separating from a spouse is always painful and stressful, which could make clear communication difficult.
There are many issues to resolve in divorce cases, from the separation of debts and assets to child support to spousal maintenance. You could end up making decisions that are not in your best interests or the best interests of your family members without the help of the discovery process.
Divorce Discovery is a way to gather information during the divorce process from you and your spouse, so everyone involved can get a clear picture of all the financial aspects related to the marriage.
It is a process carried out in most divorces, and the better you understand it, the more successful you will be in shedding light on the major issues and finding your way to your final resolution.
You will answer many personal questions throughout the proceedings, and you should understand that the process is not meant to make you embarrassed or uncomfortable.
Why Divorce Discovery Is Important
Some spouses may have some minor secrets from each other. The discovery process will level the playing field so that if your spouse does have an advantage, you will be able to learn about it and protect yourself.
Arizona is a community property state, meaning assets and debts are split fairly between spouses. To divide the assets and debts fairly, you and your spouse will gather all your information so you can see it all at once.
One important exception to the community property rule is if you and your spouse have a valid prenuptial agreement because if so, the Court will need to stick to your agreement.
Another exception is when you have inherited property separately from your spouse, and you need to make sure you protect your property during the divorce.
Arizona is also one of the states that allow for spousal maintenance or alimony after a divorce.
Financial and personal information is key in making the decision on whether spousal maintenance is necessary, how much should be awarded, and when and if the spousal maintenance should end.
It is important to keep in mind that an all-out war against your spouse would be bad for you too. Fighting only draws out the divorce for what seems like an endless amount of time without earning you any benefits.
Drawn out litigation is also expensive, and you will probably have some responsibility for that.
The problem is worsened when your spouse has a sense of entitlement coupled with a lack of empathy. These narcissistic spouses will try to take advantage of you while you are vulnerable.
You will feel better and find it easier to move on after the marriage if you work to keep the divorce amicable.
The Divorce Discovery Process (5 Steps)
Every marriage is unique, and so is every divorce. There is a roadmap you can follow that will allow you to see the steps from the beginning to the end of the process, and what will happen during each step.
In the end, the discovery process is simply an exchange of information.
Step 1: Disclosure
The first step at the beginning of the Divorce Discovery process is Disclosure. The Arizona Revised Statutes, Title 25, and the Arizona Rules of Family Law Procedure, Rule 49 specifically address what must be disclosed when divorcing in Arizona.
As far as your assets, you and your spouse will both need to disclose:
- any deeds or titles to property that you own
- any bank statements
- any investment statements
- evidence of property value
- if there is a business, the statements, and records from the business
- any personal property and its value
- if relevant, any insurance payouts
You will also need to disclose any debts, including credit cards, liens, notes, or mortgages. If you have children, it will be relevant and necessary to disclose information relevant to their care.
When you make your disclosure statement, you should also make known the witnesses you will call during the divorce proceedings.
Step 2: Interrogatories
Interrogatories may seem annoying and excessive, but they offer a way to collect a lot of information in one place. The Uniform Family Law Interrogatories have sections for:
- Name and contact information
- Education and training
- Employment, including wages earned, for the last three years
- Deferred compensation and retirement benefits
- Health insurance, including cost and the cost to insure your children
- Any other income
- Life insurance, including the cost and type
- Employment benefits, including stock options, vehicle allowance, retirement accounts, and pension
- Legal decision-making and parenting time, starting with the vital question as to whether you believe you and your spouse will be able to reach agreements and including information about the children such as medical, psychological, religious, and educational information
- Whether the Department of Child Safety has ever investigated you for abuse or neglect of a child
- Whether or not you have any personal limitations
- Your driving history, including a history of violations and suspensions
- Any Disciplinary problems at any place of employment
- Criminal history
- History of domestic violence
- A Real Estate Chart, for any property you are interested in
- Whether you are the sole owner of any property
- Information about all your bank accounts
- Any safe-deposit boxes you rent and the contents
- If you or your spouse have an interest in a personal injury lawsuit from within the last three years
- Five years of tax returns
- Financial statements, loan applications, etc. from the last three years
- Details of your intended witnesses and exhibits
- Spousal affidavits and inventories, which will tell if you want spousal maintenance, a proposed child support worksheet, and other information
Step 3: Admissions of Fact
Each party can send up to 25 requests for admission to the other party. If you do not reply by the deadline the statements will be deemed admitted.
Sometimes this is intended as a way to gather information, while at other times it may be intended to get in statements that would otherwise not be admissible.
Most requests for admission will be for facts that would be detrimental to your case, so it is imperative that you respond in a timely manner with clear statements denying each numbered statement.
It can be difficult if not impossible to get these admissions overturned even if you simply forgot to answer them. Please take these seriously.
Step 4: Request for Production
While all the discovery up until now has been more general, you can ask the opposing party to produce documents you specifically want to examine with a request for production.
This includes not just the specific financial information discussed earlier, but almost any other information that may be used during the case, such as written or recorded witness statements, photographs, emails, or any documents or evidence the other party’s witnesses intends to use at trial.
If the opposing party asks for evidence, and the other party refuses or ignores the discovery request, the Court can order the production of documents and other sanctions.
Step 5: Depositions
A deposition is a way to get the testimony of a witness before the actual trial or court hearing.
You are allowed to be at any depositions on your case, with your divorce attorney, although the parties most likely to be deposed will be you and your spouse.
During the deposition, a court reporter transcribes the parties answering questions while under oath. Any statements made during the deposition can be used later and can be used to point out that a party’s story changed.
You can easily see why the discovery process is so important when you go through a divorce.
Without all the information, it would be impossible for the divorce to be fair to both of you.
Even if you have decided to do a legal separation instead of a divorce, you will need to go through the divorce discovery process so that your assets and debts can be divided up and so that reasonable child support and child custody arrangements are established.
You should speak with your attorney about the practical advantages of choosing one process over the other.
The amount of evidence needed for the discovery process seems overwhelming, but there are limits to how much the opposing side can ask for. You have a right to complain if the requests are considered harsh or if the opposing counsel is unfair in another way.
Once you have a good idea of what the Divorce Discovery process entails, you will feel more empowered and able to get through it successfully.
You can help your attorney ask some of the necessary questions so you can make your financial picture as complete as possible.
The discovery process is instrumental to your case and there are many more issues that can arise during the discovery process not discussed above.
If discovery is not handled appropriately, it can have a negative impact on your case. If you have any questions or need some advice, please feel free to call the law firm of Burggraff, Tash, Levy PLC today.