The Discovery stage of a case is a critical part of every divorce or custody case. It is the time when you can request information, i.e. documents, items, etc., from the other party (and non-parties too in some instances) that will help you to prove your case or defend the case against you. However, self-represented litigants tend to overlook the importance of the Discovery stage and miss out on the opportunity to present their strongest case. The rules for Discovery vary based on your jurisdiction (by state but sometimes even by county) but can be found and easily accessed on the internet or in the court’s library.
The trick to doing Discovery, though, is to understand how to use it strategically. Although the underlying goal should be to freely exchange information between parties, each party should map out a specific plan as to how they will use the process in their case. This means looking at the issues in dispute, the ones not in dispute might not warrant any special attention in the Discovery stage, to determine what information is needed from the other party. For example, if your case involves allegations of abuse and the other party has been interviewed or arrested for these allegations, you might want to serve them with Special Interrogatories as opposed to general Interrogatories.
Purpose of Discovery in Family Court:
Discovery is primarily meant to make the exchange of evidence between the parties open and voluntary. The underlying principle is that each party deserves the opportunity to prepare in advance for what will be revealed or addressed at trial. Each party should be made aware of the evidence the other party plans to use against them as much as the evidence they plan to use to support their own case. Unlike what you see on television, surprise witnesses or surprise evidence is generally not allowed in Family Court (or any court for that matter.)
Not to mention, the courts always have an interest in getting the parties to resolve their case on their own. The best way to do this is by facilitating the exchange of evidence amongst the parties so that they are better prepared to negotiate settlement. So if you have a divorce case, having the other party’s financial information is necessary in order to come to a settlement that both parties can live with. In custody cases, having pictures, phone records, etc. from the other party can help them come up with a custody agreement that is amenable to the child(ren)’s best interests.
Common Types of Discovery Used in Family Court:
Although Discovery is somewhat of a “free for all” when it comes to requesting evidence from the other party, some forms of Discovery are prohibited or restricted in Family Court. For instance, in some jurisdictions, child support matters are precluded from engaging in the Discovery process. The main reason is because child support cases are generally seen as administrative, and therefore don’t really require anything more than the parties providing copies of their paystubs and tax returns.
But in divorce and custody, the limitations on the use of Discovery generally applies to the time when they can be used, the stage of the case they are to be employed and certain other conditions. These limitation vary from state to state.
The most common types of Discovery used in Family Court though are:
Deposition: Depositions can be one of the most effective tools to use in your divorce or custody case. It’s like a trial run of you questioning the other party, and non-party witnesses too. This can be incredibly important if you plan on doing the questioning yourself. In addition, it’s your opportunity to get some extremely valuable information from the witnesses, that might lead to further Discovery. Depositions are taken under oath and can be used at the actual trial (either to impeach, refresh recollection or in lieu of testimony). And last, although a deposition is an efficient way to get information it can be quite expensive and cumbersome to arrange as a selr-represented litigant.
Interrogatories: There are two types of interrogatories: form interrogatories and special interrogatories. Form (your court usually has generic forms/templates) interrogatories are standardized questions that request general answers from the other party. Special interrogatories, on the other hand, are individually crafted questions based on the issues raised by the other party that the requesting party wants more detailed information about. For the most part, the former usually has no limits but the latter one does. Special interrogatories is a great way to get the other party to substantiate unfounded claims or to force them to zoom in on broad allegations. Interrogatories are an inexpensive tool compared to depositions, but it can take longer for the other party to provide suitable answers. Also, interrogatories do not allow for an easy opportunity to ask follow up questions (this is different than following up by asking the other party to provide more complete answers.)
Demand for Production of Documents: A demand for production of documents can be sent to the other party and will require them to provide the specific documents requested. Things such as bank statements, tax returns, phone records, photos, social media account, etc.
Request for Admissions: As a self-represented litigant you may serve on the other party a written request to admit the truth of any matters relating to: (1) facts, the application of law to fact, or opinions about either and (2) the genuineness of any described documents.
Misusing Discovery & the Consequences in Family Court:
Every state has rules with respect to how Discovery is to be used to avoid abuse, misuse or overuse (particularly when used to delay proceedings). As a self-represented litigant, it is imperative that you understand how to avoid these and how to identify it when opposing counsel attempts to abuse the use. Discovery is not usually overseen by the court, meaning the parties send the requests and responses directly to each other not the court (except in some circumstances). If either party feels that they are being unnecessarily harassed, embarrassed or forced to spend an unreasonable amount of time or money they have options.
The first one is to object. Each of the Discovery tools mentioned has a mechanism to object to the information being requested. The basis for the objections needs to meet the criteria for objections in your specific jurisdiction but that is an option.
The next one is to file a motion with the court. The objecting party can either file its own motion or wait until the requesting files one. Either way, the court will decide from there if the demands are reasonable.
And last, as self-represented, you have the option to merely serve the exact same demands on the other party. This is an unconventional option and usually requires that you take into consideration the same rules that you are claiming apply.
What happens as a result of your choosing to use any of these options varies from nothing to sanctions being imposed to evidence being precluded from use at trial. So, if a party expects that the other party is abusing the process and can substantiate it, the court will look at how it prejudices their case. The court will also consider its own agenda and how the consequences will impact on its goals as a tribunal. However, in most instances as a self-represented litigant it is more unlikely that you would get the outcome you want as someone represented by an attorney would.
The Discovery process should be well planned out and used strategically, especially as a self-represented litigant in Family Court. It is your obligation to understand the rules, the uses and the practical implications for your case in every instance.
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