When two people who once loved each other decide to part ways in a divorce, things can quickly go from pleasant to unpleasant. Unfortunately, this unpleasantness can often include things like attempting to hide assets or information or even lie about things to get what they want. Because some people may try to be dishonest, the court system has come up with a process to try to keep both parties honest and ensure that everyone has access to the same information. This process is called discovery, and it allows both parties to request from each other information that each side is required to provide. The discovery process in divorce is conceptually straightforward, but it does cover a broad spectrum of information. If you have never been divorced before, you may not know what you can and cannot ask for, or what kind of information is or is not allowed to be included in discovery. If you are going through a New Hampshire divorce and have questions about the discovery process, one of the experienced family law attorneys with Friedman & Bresaw, PLLC may be able to help you with answers. Consider calling (603) 272-6827 to schedule your free consultation and get more information regarding your divorce discovery process.
Why Is Discovery Important in a Divorce?
The discovery process in divorce allows both parties to gain a full and complete understanding of the other person’s income, expenses, assets, and liabilities. Because New Hampshire is an equitable distribution state, this information is necessary for a fair and equitable distribution of the marital assets. Discovery is the most efficient and easiest method of getting this information.
The discovery process is also important because it can help each spouse to learn what the other person plans to say about their divorce and what facts or evidence may support their side. This allows each spouse to gather their own facts and evidence to dispute what their spouse is going to say if they disagree.
What Are the Steps in the Discovery Process?
There are five main steps to the discovery process in divorce. While some individuals may feel that some steps are unnecessary, it is important to thoroughly explore each step and make sure that they have gathered all the information they may need to ensure that marital assets are equitably divided, that child custody and support are appropriately awarded, and that their divorce is fairly and appropriately handled.
Step 1: Disclosure/Mandatory Self-Disclosure
The first step of the discovery process in divorce is the Mandatory Self-Disclosure. These mandatory initial disclosures are most often related to financial matters, such as recent income, health insurance, tax returns, bank and retirement accounts. This step also includes completing and exchanging a financial affidavit. A copy of this affidavit must also be provided to the court.
The New Hampshire Judicial Branch does allow parties to agree not to exchange all information. However, failing to exchange all information can lead to an unfair distribution of assets, as well as make it difficult to challenge financial matters in the future or to get future orders regarding financial issues. Even if both parties agree not to exchange all information, they both must still complete, exchange, and file a copy of the financial affidavit.
Step 2: Interrogatories
Interrogatories are lists of questions that one party wants the other to answer. These questions often cover basic information such as:
- Spouse’s name and contact information
- Various insurance policies
- Driving history
- Criminal history
- Disciplinary problems in the workplace
- History of domestic violence
- Information regarding bank accounts or sole ownership of property
- Questions regarding child custody or decision-making
The questions asked during interrogatories may cover a broad range of life areas. By having this information, individuals may be able to ensure their spouse is not hiding anything that could change the judge’s mind about custody, asset division, or other aspects of the divorce.
Step 3: Admissions of Fact
Admissions of Fact includes getting facts admitted into evidence in the divorce case. These facts can sometimes be detrimental to one side or the other, which is why it is crucial to respond by the listed deadline. If a party does not respond, the statements of fact will be admitted and deemed as fact. If you have concerns about ensuring that a specific fact is or is not admitted, Friedman & Bresaw, PLLC, may be able to assist you.
Step 4: Request for Production
During this step, each party can ask the other party to make available specific documents they would like to examine. This step can allow the individual to find out more information about what the other party intends to claim regarding the divorce, as well as look at documents that may provide more evidence to prove a fact they would like to claim. These documents can include:
- Witness statements, either written or recorded
- Any document or evidence that the other party plans to use as part of the divorce proceeding
Step 5: Depositions
A deposition enables either side of a case to get testimony from a witness before the trial or hearing in convenes in court. Most of the time, the witnesses deposed as a part of the discovery process in divorce will be of the two spouses. In some cases, there may be others who are deposed, such as therapists. In cases where domestic violence is an issue, police officers and other witnesses may also be deposed.
Individuals are allowed to be present at any deposition that is part of their divorce. The questions and answers will typically be transcribed by a court reporter, and all parties will be provided with a copy of the transcript. Statements made as part of a deposition can later be used, either in court or during negotiations, to show that someone’s story has changed, if they say something that contradicts what they said during the deposition.
Additional Optional Steps
Depending on the complexity of the divorce and the issues that the parties are at odds over, the Rules of the Circuit Court of the State of New Hampshire – Family Division allow the judge to add optional steps as part of the discovery process. These steps may include:
- Permission to enter land or other property for inspections or other reasons
- Physical or mental health examinations if there are questions about a parent’s physical or mental ability to care for their child
- The judge may expand discovery to include anything they deem appropriate for a fair and just divorce
How Far Back Does Discovery Go in a Divorce?
The discovery process in divorce is meant to ensure that both parties have as much information as possible, and that all parties are working with the same basic information. The process also helps the court to obtain a thorough understanding of the divorcing couple’s circumstances so that the judge can make informed orders. Some questions that individuals may consider asking during discovery include:
- What is your current income?
- Do you have any other income sources?
- What are your current expenses?
- Do you have any outstanding debt?
- What is your employment history for the last 10 years?
- Do you have any health problems that might impact your ability to work at some point?
- How much are your retirement accounts worth?
- What is the marital home worth?
- Do you own any other properties that you have not already disclosed?
- Do you own any personal property that is valuable?
- Have you transferred property to anyone else recently, whether you were paid or not?
- What is the current custody arrangement?
- Can you name your child’s current school, teacher, and extracurricular activities?
- What is your child’s doctor’s name and contact information?
- Have you ever been arrested or convicted of a crime?
- Have you ever filed bankruptcy?
Do You Need Help With the Discovery Process in Divorce?
While the discovery process in divorce is not complicated in terms of its basic requirements, it can feel overwhelming if you have never gone through it before. There will be a great deal of information that you may want to get, and correspondingly a great deal of information you may need to gather to share. If you have filed for divorce or are thinking about filing, a family law and divorce attorney with Friedman & Bresaw, PLLC may be able to assist you with discovery and the rest of the divorce process. You can speak with one of our experienced family law attorneys to learn more about your legal options by calling (603) 272-6827.