Divorce has many components, one of which often includes litigating in court. Ensuring a fair outcome in your divorce case requires more than just going to court and arguing. One of the most critical steps in divorce litigation is called the “discovery process.”
Discovery encompasses formal requests for and the exchange of information and documents between the parties to the divorce case, so that they can gather the evidence to narrow the disputed issues in the case and to build their respective cases for trial. What you request during discovery can (though not always does) make the difference between a fair ruling or a lopsided one.
Divorce case discovery is most commonly utilized to ensure full disclosure of marital assets and debts, to prove or disprove claims of infidelity, domestic violence, and parental fitness or unfitness pertaining to the child custody and parent-time awards
Common discovery tools include:
- Interrogatories: Written questions that your spouse must answer under oath.
- Requests for Production of Documents: documents your spouse must provide if and requested.
- Requests for Admissions: Statements your spouse must admit or deny (e.g., “Admit that you committed adultery during the marriage.”).
- Depositions: Oral questioning under oath and recorded by a court reporter (almost the same as what occurs in court, but instead of the testimony being given on the witness stand in a courtroom, it takes place at a lawyer’s office).
- Subpoena: a writ (order) to appear at a deposition.
- Subpoena Duces Tecum: a writ to produce documents when the witness appears for his/her deposition.
It’s also important to note that Utah law requires both parties to submit initial disclosures and financial declarations in advance of the commencement of the discovery period.
- Financial Declarations: A snapshot of your and your spouse’s current finances (income, expenses, financial assets, retirement savings/benefits, debts, personal expenses, real estate, and personal property).
- Initial Disclosures: A list of the witnesses and experts that you may call at trial and the matters on which he or she can provide testimony, as well as a copy of the evidence (such as paper documents, text messages, email threads, photographs, audio or video recordings, etc.) that you intend to submit as evidence at trial.
Strategic and thorough discovery is the key to getting the full picture, especially from a spouse who is hiding assets or evidence that could hurt his/her case or yours.
Key Evidence to Request During Discovery
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- Income Documentation: Pay stubs, W-2s, 1099s, tax returns. If your spouse is self-employed, ask for business financial statements and profit-and-loss statements.
- Bank and Investment Accounts: Statements for checking, savings, investment, cryptocurrency, and other financial accounts.
- Credit Card and Loan Statements: These can reveal spending patterns and debts you may not know about.
- Property and Asset Documentation: Records for real estate, vehicles, and valuable personal property like jewelry, art, firearms, collectibles, etc.
- Hidden Assets: If you suspect your spouse is hiding money or assets, ask for records that may help reveal cash withdrawals and other cash transactions, unusual account transfers and creation, and new asset purchases.
- Business Interests
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- Corporate tax returns and financial statements.
- Ownership documents, partnership agreements, and business valuations.
- Spousal Support / Alimony Factors
When alimony is at issue, the court considers each spouse’s income, the standard of living during the marriage, and financial need. Discovery should include a search for:
- documents showing standard of living: household bills, vacations, luxury purchases.
- records showing any disparities in income or earning potential.
- records of marital and personal expenses to show financial need if it exists.
- Child Custody and Parenting Issues
For cases involving child custody disputes, discovery often includes evidence of parental fitness such as:
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- Parental fitness: Calendars, communication logs, and records of childcare responsibilities.
- Child’s Needs: Medical, psychological, or educational records.
- Allegations of Abuse or Neglect: Police reports, medical records, and any protective orders.
- Expert Evaluations: Custody evaluations or psychological assessments, if any have taken place or have been ordered by the court.
Discovery should be tailored to the issues in your case. Complex cases may involve discovery that may not be needed or possible in simpler cases.
- Hidden Assets: In high-conflict or high-asset cases, discovery may involve forensic accountants or subpoenas to banks and financial institutions.
- Complex Income: If your spouse’s income is tied to bonuses, commissions, or self-employment, or is unusual is some way (such as OnlyFans or Patreon) you may need detailed financial records and expert review.
- Child Custody Disputes: When parenting time is contested, discovery might include third-party statements from teachers, doctors, or therapists.
Thorough discovery can resolve disputes early by clarifying the real facts and staving off false narratives that a manipulative spouse will peddle to the court.
Practical Tips for Discovery
- Be honest: Provide your attorney with everything, even if you think it’s not important. Full disclosure builds and preserves your credibility.
- Stay organized: Keep copies of documents and track your own financial and parenting records. If you have not been doing so, start immediately. Evidence that proves your claims is the best—and often the only—way to combat lies and manipulation.
- Meet deadlines: Failing to respond to make or respond to discovery requests on time can limit the evidence you can use, resulting in fewer options and a weaker case. It can even result in having judgment entered against you for failure to cooperate in discovery.
The discovery process can feel overwhelming for many, but it’s your chance to protect yourself, your children, and both their and your futures. Gathering the right evidence helps ensure the court sees the full and accurate picture and dispels lies and deception. A fair outcome can and often does hinge on engaging in discovery effectively.
Utah Family Law, LC | divorceutah.com | 801-466-9277
