You are the world's foremost expert on what it's like to be married to your spouse. In particular, you know how your spouse treats you, how they parent, how they spend or save money. In order to get a divorce judgment that reflects those realities, you need for the judge to know much of what you know. You can testify to some of this information—but your spouse may testify to the contrary. It is often necessary to conduct discovery as part of the litigation process, but discovery can also help to evaluate settlement options. Even if your divorce case settles (as many do), discovery provides the information you need to reach an informed, reasonable agreement.
The best way for your divorce judge to learn what you know is through the introduction of reliable, admissible evidence about your marriage, your finances, and your spouse's behavior. The way this information comes to light is through the discovery process.
Formal discovery is established by Maryland statute and court rules. It involves a number of methods designed to gather information to support your divorce case. Most commonly used in divorce cases are interrogatories and requests for production of documents.
Interrogatories are a series of written questions that must be answered under oath, under penalty of perjury, within thirty days. You and your spouse cannot ask each other just anything; parties don't have to answer questions seeking information that would be objectionable or irrelevant to the divorce action. If you're unsure if information is objectionable or irrelevant, talk to your attorney. Questions about finances and personal conduct that might affect custody or visitation rights are fair game. Because interrogatories need to be answered following a particular format, you will want to work with your attorney to be sure you're providing thorough information.
Requests for production of documents are exactly what they sound like. You and your spouse, through your attorneys, can ask each other for documentary evidence, including bank, investment account, retirement account, and credit card statements; pay stubs; income tax returns, and any other documents relevant to property division, custody, or child support. You may not deliberately destroy, withhold, conceal, alter, or make up documentary evidence in a divorce (or any other) case.
Other, less frequently used discovery tools include depositions, requests for admissions of facts, subpoenas, mental and physical examinations, and subpoenas. Depositions involve one party's attorney asking the other party verbal questions under oath. Both parties are usually present together with their attorneys and a court reporter who transcribes the proceedings.
Requests for admissions set forth a list of alleged facts and require the other party to admit or deny under oath that they are true. Mental and physical examinations are rare, but may be authorized if a party's mental or physical condition is a relevant issue in the case, such as fitness to have custody of a child. Subpoenas can be used to compel the parties or third parties to produce relevant documents.
What if you fail to comply with a formal discovery request? What if you fail to comply in a timely manner? Refusing to comply in full and on time can cost you dearly. If, for instance, you refuse to respond to a request for admission of facts within the specified time, the court may deem the alleged facts admitted. If you refuse to comply with other discovery requests, the court may order you to do so. If you still don't comply, you may be found in contempt of court. You might be barred from participating in the trial, and you might even be forced to pay your spouse's attorney fees associated with attempts to get you to comply with discovery.
Discovery is one of the things that makes divorces so expensive. It takes an attorney several hours to draft discovery requests, attempt to compel the other party to comply, and sift through documents to isolate relevant information. Those hours can translate into thousands of dollars in attorney fees.
You and your spouse might, instead, come to terms with the fact that you are both entitled to certain information about the other. Informal discovery is really just parties agreeing to exchange certain information. While your attorneys will still need to review the information, agreeing to produce it up front saves both time and money. A certain level of cooperation, if possible, may even pave the way for a more conciliatory divorce overall.
Of course, formal discovery may still be called for, especially if you do not trust that your spouse will be fully honest or forthcoming. But you should discuss with your divorce attorney the possibility of proceeding informally.
If you are considering filing for divorce, or have been served with divorce papers, and want to learn more about Maryland divorce discovery, contact the Law Office of Shelly M. Ingram, LLC. We would welcome the opportunity to schedule an office consultation where we could discuss the facts of your case and discovery options to collect the information that you require.