You've made it through the divorce filing process, and the Initial Case Management Conference and Early Neutral Evaluation. Unfortunately, you and your spouse haven't been able to reach agreement on all of the issues in your divorce, so the process continues. You may find that your disagreement extends to basic facts, such as what assets were accumulated in the marriage, and you need to discover the truth. For this reason, the next step in the Minnesota divorce process is called "discovery."

A divorce is a lawsuit, and, like other lawsuits, the petitioner and respondent have the right to discover certain facts about the other side. Unlike parties to many other lawsuits, spouses know each other pretty well, and may think they know everything about the other spouse: how much they earn and whether they are hiding assets, having an affair, or engaging in conduct that might affect their fitness as a parent. Suspecting or even knowing something isn't the same as being able to prove it, however. The discovery process allows parties to gather evidence that will help them prove their case at trial, or give them leverage to help settle it.

What happens in divorce discovery?

There are many things you might wish to learn in the discovery process.Your spouse's income is relevant to spousal maintenance and child support. You cannot fairly divide marital assets until you know exactly what they are and what they're worth. Because there are many things to learn, there are many mechanisms for discovery.

The first and simplest is sometimes known as “informal discovery.” This is simply requesting documentation such as pay stubs, bank statements, retirement account statements and income tax returns from the other party. Such basic information is clearly relevant to the divorce, so it makes much more sense for you and your spouse to exchange them voluntarily (and for free!) than to have your attorneys spend time and resources requesting them. However, there are more formal discovery tools with which a lawyer's help is beneficial. These include:

  • Interrogatories: written questions from one party to another, which the receiving party must answer in writing, under oath. Each party is limited to 50 interrogatories unless the court approves otherwise.
  • Requests for Production of Documents: written requests for a party to give the opposing party copies of relevant documents in their possession or to which they have access.
  • Requests for Admission: One party sends the other party a list of statements; the receiving party must admit or deny the truth of these statements. Failure to respond within thirty days means that the court will deem all statements admitted.
  • Depositions: Both parties and their attorneys meet for one attorney to ask a series of questions to the opposing party, who is under oath. A court reporter is present to create a transcript of the deposition, which may last for several hours. Because of this, depositions are a costly option for discovery.

Ideally, each party will respond in a timely fashion to discovery requests. If they fail to do so, however, the party requesting discovery may file a motion with the court to compel compliance.

What happens if my spouse doesn't comply with divorce discovery?

Your spouse may make legitimate objection to answering certain discovery requests, especially if the requested information is not relevant or is something to which you have equal access. A number of things can happen if your spouse chooses not to comply with appropriate discovery requests depending on the nature of the requests. A failure to respond in a timely fashion to a request for admission means that the statement is legally deemed admitted. If your spouse has been requested to admit to having concealed significant assets, for example, this could be disastrous for him or her.

If your spouse fails to comply with other discovery requests, and your attorney has filed a motion to compel compliance, the court has several options. The court may order compliance within a specified time, and may order your spouse to pay your attorney fees in seeking compliance with discovery. The court may choose to draw an inference adverse to your spouse on the issue on which your spouse refuses to provide discovery (e.g., the value of a business or income through self-employment). If your spouse's failure to provide discovery is willful, persistent, and egregious, the court may even hold him or her in contempt of court.

If your Minnesota divorce case has reached the discovery phase, you need the help of an experienced family law attorney to properly draft discovery requests and interpret responses. Please contact us at Mundahl Law with any questions you have about the Minnesota divorce discovery process. We look forward to working with you.