What is “Discovery” and What Can I Do If My Spouse Refuses to Comply?

 Posted on July 19, 2021 in Divorce

In many divorce cases, one spouse knows very little about the family finances, assets and debts, or the other spouse’s income and employment. There are many reasons why that could be the case, but often times it is because the other spouse was responsible for handling all of the financial aspects of the parties’ lives while they were married. Even in situations where the parties believe they are familiar with the other party’s income and assets, confirming that full disclosure has been made under oath is critical for diligence purposes.  Further, the exchange of financial information of both parties is necessary in order to reach a fair resolution in the case, whether through trial or settlement. Therefore, attorneys always recommend that the parties participate in full discovery during the divorce process.

Discovery is the process by which parties in a court case can obtain information and evidence that may be relevant to the specific facts or allegations in their case. Discovery is also commonly known as the “information gathering” stage of a case.  In a divorce case, typically all income and financial assets are relevant, even if they are non-marital, and at least 3-5 years of information is requested. It can be time consuming to prepare and gather as well as for the recipient to review and parties often spend many hours sorting through PDF’s or bankers boxes of documents in order to comply.

To begin the process, parties typically issue various requests including a Notice or Request to Produce and Interrogatories. A Notice to Produce requests that the other party produce any and all documents they have, or can reasonably obtain access to, in response to the specific requests set forth in the notice. For example, a Notice to Produce in divorce cases typically contains requests for financial documents such as paystubs, tax returns, bank account statements, and/or retirement plan statements.  While a spouse may not physically possess every bank statement for the last 3 years, the documentation is in their control and therefore they are obligated to reach out to the financial institution and request the information.  Interrogatories, on the other hand, are requests that ask the other party to answer, in written format, specific questions that may be relevant to the divorce case. For example, Interrogatories typically contain a request for the other party to list information such as their employment history, income, bank accounts, and/or retirement assets. The Supreme Court Rules contains the standard Interrogatories that must be used in a divorce proceeding unless a party is permitted by the court to ask for different information. 

If you have a spouse with whom you are civil, and they are willing to cooperate with you throughout the divorce process, then obtaining their financial information through discovery should not a problem. But, what do you do if your spouse refuses to appropriately comply with discovery and turn over the requested information to you? There are several legal tools you can implement to attempt to obtain the information you need from your spouse. One option is to bring the matter to the court’s attention by filing a Motion to Compel. A Motion to Compel is an application for relief to the judge, asking the court to order the other party to comply with the discovery requests you issued to them. The Judge is vested with the authority to order the other party to produce specific documents and to do so within a certain time frame. If your spouse refuses to comply, even after being ordered to produce documents by the Judge, the Judge can find your spouse in contempt of court which could result in jail time.  If two attorneys are involved in the case, it is required that they conduct a conference to discuss the outstanding discovery before a Motion to Compel is filed (also known as a 201k conference). 

Another method of obtaining information if your spouse refuses to cooperate with discovery is to issue subpoenas. Subpoenas can be issued to almost any entity, but proper protocol must be followed to ensure compliance. For example, you can issue subpoenas to places including, but not limited to: the banks you believe your spouse holds accounts at, your spouse’s employers (past and/or present), credit card companies, and the like. When the entity receives your subpoena, they can turn over any relevant documents in their possession without the need for your spouse’s consent or involvement. However, it is important to bear in mind that subpoenas do not ensure a spouse has disclosed all assets, so you will want to ensure a formal response to your Notice to Produce is still provided.  Another downside to issuing subpoenas is the cost -not just attorneys fees, but the witness fee you are required to tender to the recipient of the subpoena.  The entity receiving the subpoena has the ability to charge reasonable research and copying costs associated with the production of documents requested, which is an additional cost on top of the attorney’s fees you paid to have the subpoena prepared. Typically, the costs associated with responding to the subpoena can vary depending on the number of documents requested and the third-party entity’s rates.

An additional method to obtain information requested is to issue a notice of deposition to your spouse, which could contain a rider asking for the same documents contained in your Notice to Produce.  Again, it is still recommended that you seek a formal response to your discovery requests, but a deposition requires your spouse to appear on the date and time stated in the notice, under oath, with a court reporter present. During the deposition, you can ask for the specific information you need to build your case. The information gathered at the deposition can later be used in court as evidence or to impeach your spouse if they testify with conflicting answers to your questions.  

The discovery process is governed by a very specific set of legal rules which can dramatically affect your case. Those rules include important deadlines and information regarding the limits of what can be requested. Therefore, preparation of the appropriate discovery requests and/or responses is necessary to ensure compliance with those rules. Additionally, the process of obtaining the necessary information and enforcing discovery requests is equally as important and will likely require a lawyer to properly facilitate the process. If you are interested in receiving more information about the discovery process as well as enforcement of discovery, please contact our office for a free thirty-minute consultation.