The Discovery Phase of a Divorce or Custody Case

While not mandatory, discovery often occurs in family law cases and clients are well-advised to research this complex process before engaging in same. Fortunately, discovery is exactly what it sounds like—it is a litigation tool to assist the attorneys and parties in discovering new, or previously undisclosed, information relevant to the case. In every family law case, whether it is an allocation of parental responsibilities action or a dissolution of marriage, your lawyer needs to obtain the information necessary to: (I) assess the merits of your case; (II) to prepare for alternative dispute resolution and settlement negotiations; and (III) to prepare for trial. 

The propounding of various requests, and the subsequent exchange of information between parties, is called “discovery.” The discovery process for family law cases typically includes: “interrogatories,” “requests for production of documents,” issuance of multiple “subpoena duces tecum,” and sometimes “depositions.” 

In Colorado, the Supreme Court has authorized the use of ten-pattern requests for production of documents. Additionally, the Rules of Civil Procedure provide each party the opportunity to request up to ten “non-pattern” documents that your attorney can specifically tailor to the circumstances of your case. In a divorce situation, these written requests for production of documents will generally ask for the production of supplemental financial documents about the nature, source, and extent of each party’s property, whether it was acquired during the marriage or prior to the marriage, as well as information about income and debts. 

Further, if decision-making authority and parenting time is in dispute, lawyers will frequently request information about the parties’ children, or information germane to each parent’s prior involvement with the kids. Generally, requests for production of documents permits your attorney to ask for documents going back several years. If you or your spouse own a business, expect several requests for production of documents asking for voluminous financial documents relating to the business, including but not limited to: accounting records, profit and loss statements, and customer lists and records. If necessary, speak to your counsel about the possible need for a protection order from the Court to protect any potential information that is proprietary to your business. 

Similar to requests for production of documents , the Colorado Supreme Court has authorized the use of ten pattern interrogatories and ten non-pattern interrogatories. Interrogatories are simply written questions served on the opposing party that require a written response given under oath. These questions can be particularly helpful in assisting your lawyer with pinning down the other side on their position to various issues. Because these answers are given under oath within 35-days of being served, lawyers often use these responses to impeach the other party at trial if they attempt to change their response to any of the prior questions. Parties with children would be prudent to propound pattern interrogatory number thirteen as it essentially forces the opposing party to outline their legal position on all allocation of parental responsibilities issues prior to trial. 

Next, as an officer of the Court, your lawyer has the ability to issue subpoenas on third-parties, which require the recipient to produce the requested documents to your lawyer within a certain time frame. A subpoena is typically used to obtain records that may help your case, but which the other side will not or cannot produce. Common examples where subpoenas are utilized is in seeking: bank records, credit card records, information from an employer, or to obtain a copy of a trust instrument from the trustee if the opposing party is a named beneficiary in order to determine the contents of the trust corpus and to what extent the other side may demand distributions from the trust.

Finally, as part of the discovery process, either lawyer may schedule a “deposition,” to depose the opposing party, which must take place in the presence of a court reporter. There is a growing trend in family law to have these depositions videotaped. The person being deposed will first be sworn in by the court reporter prior to answering all of the lawyer’s questions under oath. In family law, you, your spouse, and other people having relevant information about your case may potentially be deposed. 

The primary purpose of a deposition is three-fold: (a) first, the deposition is used to gather pertinent facts about the case; (b) it is then used to assess how well the deponent would testify if the case proceeds to trial; and (c) it ensures that critical questions are asked under oath to avoid any surprises at hearing. Similar to interrogatory responses above, a skilled litigator will use the deponent’s answers against them at trial if they change any of their responses to attack the credibility of the witness. More often than not, a party will need to order and pay for a deposition transcript form the Court reporter when the deposition is concluded for purposes of trial preparation and use as a trial exhibit. 

Colorado Rule of Civil Procedure 16.2 mandates each party to a family law dispute has a legal obligation to provide certain information to the other side automatically, subject to only a few certain limitations. The discovery tools outlined above assist lawyers with expanding the scope of Rule 16.2 mandatory financial disclosures. If your spouse fails to disclose certain financial records or assets required by Rule 16.2 and your attorney recovers them in discovery, the Court may sanction the opposing party by ordering them to pay a monetary sanction, ordering them to pay your attorney’s fees and costs incurred in connection with your discovery efforts, or the Court may simply award you the asset the opposing party attempted to conceal. 

While discovery is a very useful litigation tool that can simultaneously be used to assist in the facilitating of a beneficial settlement, the discovery phase of a case often times ends up being the most expensive component of a case aside from trial. Drafting of discovery is a time-consuming and somewhat tedious endeavor, and so is the review of any records produced by the opposing party. Nevertheless, discovery may end up saving the client money if it helps to bring about a timely settlement of the case. 

The family law attorneys at McConaughy & Sakissian, P.C. are astute in all aspects of discovery in domestic relations cases. It is crucial to hire an attorney and experienced paralegal that will work with you in tandem to facilitate this process from start to finish. Call us today at (303) 649-0999 to discuss this process, or visit our office conveniently located in Douglas County, Colorado.