Discovery: How It's Handled in Divorces

You may not think of it as one, but divorce is, technically, a lawsuit. And like other lawsuits, the rules of civil procedure apply. This means that each party involved in the law suit is entitled to "discover" facts and documents from the other party that may be necessary to prove their case, with very limited exceptions. In general, if a document or piece of information is relevant to the case, or might lead to evidence that is admissible in court, it is discoverable.

In a Minnesota divorce, information about assets, debt, income, and expenses are always relevant as they factor into issues such as child support, spousal maintenance, and property division. Parties may want to expose each others' medical and mental health history and personal behavior as relevant to child custody and parenting time. In practice, there is a great deal of personal information that can be deemed relevant, and therefore subject to discovery.

How is Discovery Conducted in a Minnesota Divorce?

Court rules provide for certain specific methods of discovery. Possibly the best known of these is the deposition. In a deposition, one party has the right to question the other party under oath (they are swearing that the information is true). The lawyers for both parties are present, as is a court reporter to transcribe (write down) what is said, a video to record the proceedings, or both. Depositions take hours, and may extend over multiple days. Because of this, and the fees of the professionals involved, depositions typically cost thousands, sometimes many thousands, of dollars. This is even before you count the attorney's fees for reviewing the transcript of the deposition!

There are other types of what is often referred to as "formal discovery." By comparison, they are usually less expensive, but that does not mean they are inexpensive. Interrogatories are a series of written questions one party submits to the other through their attorneys. The other party answers in writing under oath, providing supporting documentation if necessary. Requests for production of documents are exactly what they sound like, and may require one party to produce income tax returns, pay stubs, bank, investment, and retirement statements, credit card bills, and more. A party may also request the other party to admit to the truth of certain facts. If the party served with these requests does not respond within the time given, the facts will be deemed admitted. In some situations, information or documents can be retrieved from a third party via a subpoena.

Discovery is essential in a divorce case, but is often one of the most costly aspects. Attorneys bill for the time preparing discovery requests, filing and appearing on motions to compel discovery if the other party doesn't respond, and sifting through discovery that is provided. Then there are the expenses associated with responding to the inevitable barrage of discovery requests from the other side. All of this expense is paid for from the parties' assets—ironically, the same assets they're fighting over with a mountain of discovery requests.

How to Save Money While Conducting Discovery

Unnecessary use of formal discovery can be like two nuclear powers with their fingers on their respective red buttons: if one fires, the other does too. You can bring down your opponent, but at what cost to yourself? Fortunately, there is an alternative.

In many cases, parties can simply agree to exchange information and documents through their lawyers. Each party provides the financial information on accounts, income, and debt that they know the other will request. It's not knuckling under or being soft; the other party has the right to this information and will get it one way or the other. If you force your spouse to incur $10,000 in legal bills to conduct discovery, be assured they will do the same to you.

An ethical divorce attorney will not try to jack up their fees by starting the discovery process with a formal request. Instead, they will likely contact the other attorney and attempt to agree to an exchange of information and documents. Minnesota family courts encourage this type of informal discovery because it conserves the parties' resources and expedites the divorce process.

Be very suspicious of a divorce attorney who wants to come out, figurative guns blazing, and take your spouse "for everything they've got." Chances are that means taking you for everything you've got, too, in the form of legal fees. In addition, an aggressive posture in divorce discovery can escalate hostility and bitterness between parties, making it difficult to communicate or co-parent long after the divorce is over.

That doesn't mean formal discovery is never necessary. It just shouldn't be the first tool out of the attorney's tool box. In situations where a party refuses to cooperate, stonewalls, or is suspected of hiding, dissipating, or transferring assets, formal discovery may be needed.

To learn more about discovery in Minnesota divorces, we invite you to contact Mundahl Law to schedule a consultation. We look forward to answering your questions.