Discover Discovery: The importance of the Discovery Process in Family Law

Many clients dealing with family law issues wonder why the hassle and cost of discovery is necessary. They know their spouse’s assets; they were there to witness them buying that car or jewelry. They know their spouse’s pension has $X.XX vested because they talked about it when the marriage was going well. They know their spouse is not hiding anything because they could not do that, would not do that, or should not do that. Because of these opinions, many clients feel that discovery is unnecessary and too costly. However, what you do not know may hurt you. This article will hopefully impress on the reader the necessity of discovery.

Discovery is that legal process designed to elicit information from the opposing party in a lawsuit. It is the principal fact-gathering method in litigation and may actually help to minimize costs in the long-run by narrowing the issues that need to be addressed at trial, convincing either a settlement might be a preferable resolution, or by finding hidden assets to be distributed. Discovery encompasses a wide variety of techniques, including: Interrogatories, Requests for Production of Documents, depositions (written and oral), physical and mental examinations, admissions, and others. The most important and most commonly used discovery methods are Interrogatories, Requests for Production of Documents, and Requests for Admissions.

Interrogatories are questions posed to the opposing party. In North Carolina, a party may pose up to 50 Interrogatories to the opposing party. If a party to whom the interrogatories are made does not answer the questions, the court may impose a host of sanctions, including but not limited to: 1) entering a judgment by default; 2) dismissing the case; 3) striking the pleadings; 4) staying the proceedings; 5) prohibiting the non-answering party from supporting his case or from opposing certain defenses; 6) prohibiting the non-answering party from introducing certain evidence; 7) finding the non-answering party in contempt; or any combination thereof.

The opposing party must answer the Interrogatories under oath which increases the likelihood that the information will be truthful. Of course, a party may answer but not tell the truth. If such is the case, the individual may be subject to criminal sanctions such as perjury. Other discovery methods may reveal the untruth told in the interrogatories and may be useful in impeaching the opposing party during the hearing.

Requests for Production of Documents (RPDs as they are sometimes called by attorneys) are exactly what they sound like. An attorney makes formal requests for documents in the other party’s possession or in their control. Failure to release requested documents can lead to sanctions by the court as detailed above. Unlike Interrogatories, there is no limit to the amount of requests that can be made. A verification under oath must also accompany the RPDs.

Admissions are statements presented to the opposing party. The opposing party is asked to admit or deny the truth of certain matters, the application of law to the facts, or the genuineness of certain documents. Admissions are very useful in narrowing the scope of the issues at trial. Also, if the opposing party does not answer a request for admission timely, the request may be deemed admitted.

In one case in Pender County dealing with marital property division (Equitable Distribution), a husband failed to timely file his responsive property listing which caused the Court to order the husband to pay the wife’s attorney fees associated with obtaining the listing. The husband was represented by an attorney. In another case, discovery showed that a wife who had secretly planned to leave her husband for sometime had accumulated property in the names of businesses she owned worth several hundred thousand dollars. The husband had no idea of the existence of this property. Another client discovered her husband had a good case for her to repay his debt of over $70,000 which caused her to dismiss her claim leaving him, in this particular case, literally “holding the bag” of debt because they had already divorced and he had no counterclaim for equitable distribution.

As alluded to above, discovery can help to uncover hidden assets. Many clients think they know what they and their spouse own as a couple and yet after the discovery process, many find that their assets are much greater than they thought. Of course, occasionally it works the other way as well and some client discover that the marriage actually has less then what their spouse had been telling them for all those years. The important thing is to know what is out there so that the attorney can plan and advise accordingly.

If discovery is had and the case settles based upon the representations made under oath in discovery and such representations are later found to be fraudulent, that would be a basis to “re-open” the case. A waiver of discovery or an acknowledgement that full disclosure was had when it was in fact not had, would not generally be grounds to re-open the case.

In cases of child and spousal support, discovery is essential. One individual showed a very modest “salary” but he owned his own business. His answers and responses to discovery showed that much of his personal expenses were run through his business. By proving this to the Court, the Court was able to reallocate such personal expenses as income to him which resulted in a higher child support obligation.

Modern technology has increased the effectiveness of discovery and has reduced the cost of discovery methods. Whereas just a couple decades ago an attorney had to type for long hours to generate discovery; with word processors, the internet, and modern computer database technology, an attorney can generate discovery, use public information to validate/invalidate the answers and responses, and research the effect of that new information in a fraction of the time. Less time for the attorney means less money the client has to pay.

In conclusion, discovery is a useful tool for the attorney and is usually absolutely necessary to protect the client’s interests. By finding hidden assets, preventing surprise, narrowing the issues before trial, or promoting fair settlement; discovery reduces the costs to the client in the long run and/or increases that which the client is entitled.

Published August 10, 2009 | Authored by Richard Forrest Kern, Esq. and Mark Spencer Williams, Esq., Rice Law, PLLC

Author’s Note: This article is not intended to be a comprehensive analysis of the discovery process. The Purpose of this article is to impress on the non-lawyer who may read it, the importance of discovery and to outline generally some commonly used discovery methods in North Carolina family law and divorce actions. The reader interested in learning more should contact their attorney.