Divorce Q&A: What is Discovery?
Outside the legal world, the word “Discovery” brings about feelings of excitement and exploration. In the Florida Divorce and Family Law context, “Discovery” may not be as exciting, but it can make or break a case. “Discovery” can most easily be defined as the pursuit of evidence. This evidence can come in many different forms, including bank statements, retirement account statements, deeds for property, mortgage statements, credit card statements, medical records, social media posts, transcripts, and witness testimony. Evidence that is requested during discovery should be relevant, meaning that it has a purpose in settling an issue or question related to the case.
The Most Common Methods of Discovery:
1. Financial Affidavit: This is a sworn statement each party will file that gives the court a “snapshot” of each side’s current financial situation, including income, expenses, assets, and liabilities;
2. Mandatory Disclosure: In a Florida Divorce, the rules of procedure require that both parties disclose certain documents and information during the “Mandatory Disclosure” process;
3. Request to Produce: In addition to what is required under “Mandatory Disclosure,” either side may request additional types of discovery, for longer periods of time, if the information requested is relevant and necessary in proving your case;
4. Witness Subpoena: a witness subpoena is a request for a person, representative of a business, or an expert to appear, often in court or at a deposition, and give their testimony under oath;
5. Subpoena Duces Tecum: a subpoena duces tecum requests that a party, employer, financial institution, or other third party produce documents;
6. Deposition: A Deposition involves the recording of answers, or sworn statements, from a party or other witnesses;
7. Interrogatories: Sworn statements, in writing, in response to written questions; and
8. Request for Admissions: The request that an opposing party provide written admissions to certain allegations.
Why is Discovery Important?
Courts encourage a broad range of discovery, so that there are no surprises, and each side can present the strongest case possible, using relevant and admissible evidence. For example, without any information about a party’s income, assets, and liabilities, it would be an error for the Judge to award that party Alimony. Discovery is not only important for trial, but is also important for purposes of negotiation or mediation. Once the parties and attorneys know what is involved in the case, it is much easier to negotiate a fair settlement.
What do I Produce? What do I Request?
An experienced divorce attorney can help guide you in recognizing, requesting, and preparing essential evidence during discovery. It is up to the divorce attorney to assess the case and determine how much and what type of discovery should be produced, depending on the circumstances, client goals, and budget. Complying with discovery is not only a responsibility for your attorney, but a responsibility that every party should take seriously.
Ultimately, the amount and type of discovery you must submit will vary depending on the facts of your case. Many times, attorneys on opposite sides disagree about what discovery is relevant and necessary to be produced, and file and argue “Objections to Discovery Requests” or “Motions to Compel Discovery,” and then it is up to the Judge to decide. An experienced divorce attorney can help guide you through the Discovery process to ensure that you obtain the discovery necessary to prove your case and help protect you from having to comply with unnecessary, intrusive, and burdensome discovery.
This is NOT LEGAL ADVICE. It is intended for informational purposes only and should not be relied on to make any legal or other major decisions. If you have specific questions or inquiries regarding any of this information, you should consult with an attorney licensed in your state.