Most people going through a divorce do not know about, have never heard of, or cannot anticipate the onerous process that is discovery.
What is Discovery?
Discovery is a legal term of art that describes the process of obtaining evidence from the other party during litigation. In Minnesota, this process is guided by the Minnesota Rules of Civil Procedure and the Minnesota Rules of General Practice. Evidence, for the purpose of divorces, focuses mainly on the financial documentation of the parties’ marital estate. There are two ways in which to gather evidence through the discovery process: Interrogatories and Requests for Production of Documents. Interrogatories are basically a set of questions that either party may ask of the another. The point of interrogatories is to gather information regarding the parties’ familiar and financial history and ask pointed questions to ascertain each parties’ position on various issues. Requests for Production of Documents are requests for documents that may or may not correspond with the interrogatories and are used to verify income streams, assets, marital property, non-marital property and/or debts.
Informal vs. Formal
Interrogatories and Requests for Production of Documents may be addressed either formally or informally. Formal discovery essentially mandates that the party providing the information swears and affirms to the truth of their answers. In family court matters, informal discovery is usually encouraged. Informal discovery does not require the person answering/providing documents to swear and affirm their responses and usually informal requests are made via letters. Importantly, informal discovery is not governed by the Rules of Civil Procedure. From the court’s perspective, the point of discovery is to disclose as much information as you can to the other party so everyone has a baseline set of facts to work from. Essentially, the more cooperative each party is in the divorce, the easier the discovery process will be, thereby cutting litigation costs substantially.
Cutting Down Discovery Costs
The best way to save on your lawyer’s fees in the discovery process is to obtain and organize information yourself as opposed to sending your attorney a garbage bag full of receipts and coffee-stained statements. Even before your attorney asks for any information from you, gather the important documents – tax returns, mortgage statements, pay stubs, insurance policies and retirement account summaries. Make sure you have online access to all of your banking, credit card, and investment accounts to simplify document requests. That way, when the discovery process begins, you can send information to your attorney in an efficient and organized way, cutting down the time they would otherwise spend on accounting and organizing your documents. Going through a divorce is not easy, emotionally or financially, but a small amount of organization at the beginning can potentially save you thousands of dollars.