Discovery is a term used to describe the information gathering process during your divorce. Basically, it describes the time during the divorce proceeding when you will request any relevant information about your spouse and they will request information from you too. Any information that is relevant to your marriage and the divorce is deemed discoverable, which just means it is accessible.
Information that is commonly requested during discovery will cover: employment, other income, investments, property, retirement accounts, benefits, life insurance, expenses, debt, taxes, business ownership, collectibles, information related to children, and information that relates to any fault-based reason for the divorce. This is just a sampling of what discovery can cover, and what you request will depend on the circumstances of your divorce.
Four Basic Types of Discovery
In Virginia, there are four basic types of discovery: interrogatories, requests for the production of documents, requests for admission, and depositions. Think of these as tools used to gain the information you are requesting.
1) Interrogatories are essentially open-ended questions that you will submit to your spouse. The law in Virginia limits you to thirty interrogatories for your entire divorce proceeding, which means the questions can be lengthy and complicated. For example, you would not use one question to ask where your spouse worked and another to ask their salary. Instead, because you are limited in the number of interrogatories you can submit, you would form one question that encompasses your spouse’s employment history, benefits from that employment, salary, information about any bonuses, and anything else relevant to their employment. You do not have to submit all your interrogatories at once so you can use a series of questions to find the information you are looking for.
2) Requests for the production of documents are exactly what they sound like. You can ask your spouse to provide bank statements, tax returns, pay stubs, or any other relevant documents. The only exceptions are in cases where providing the information would be too burdensome or would lead to inadmissible evidence. These requests are not limited to paper documents. Pictures, video footage, and electronic media are all accessible in certain circumstances. There is no limit on the number of requests for production that can be made. However, the custom in Virginia is for requests for documents to be within the last five years or less, unless some special circumstances are relevant.
3) Requests for admission are similar to interrogatories, but are more like yes/no questions as opposed to open-ended questions. They are statements that you believe are true and are asking your spouse to admit or deny. For example, a request for admission could read: “You own a parcel of land in Henrico County.” Your spouse could admit or deny that statement. There is no limit on the number of requests for admission that can be made. As an important note it is possible to plead the fifth in response to requests for admission. This is most commonly an issue in cases of adultery. Because adultery is a misdemeanor crime in Virginia any request for admission asking about an affair could be responded to with a response where the party pleads the fifth, meaning they invoke their right against self-incrimination. Importantly, requests for admission are unique in that if they are not responded to in the proper timeframe the judge can deem that each request for admission was admitted.
4) A deposition allows your attorney to ask your spouse any questions relevant to the divorce while they are under oath. Depositions can also be used to gather information from expert witnesses, or from other witnesses by using a subpoena. Depositions are becoming increasingly more common and are often agreed to in the pre-trial order.
There are some important things to remember with respect to discovery. First, while many of the forms of discovery are phrased as requests, they are actually mandatory unless they are objectionable. Second, timing is an important aspect of discovery. Generally discovery requests can be made any time from the time of the complaint until 21 days before trial. Once discovery requests are served the responding party has 21 days to respond, or 28 if the requests were made at the time of the complaint.
The attorneys of Smith Strong, PLC can help you file and respond to discovery in a way that will ensure you are satisfied with the outcome of your divorce.