With the aid of mediators or counselors, many couples resolve their differences in divorce and separation. The conditions of your divorce or separation may not, however, be something you and your spouse can agree on. In that situation, your divorce attorneys would go through a discovery process where each lawyer will try to defend the interests of their client as best they can by gathering all the data relevant to that client’s case. Let’s explore how to avoid discovery in a divorce.
What is Discovery?
If both parties cannot come to an agreement on the terms of your divorce, then you can either postpone getting a divorce or employ lawyers to represent you. If both of you have retained attorneys to represent you during negotiations, you cannot escape discovery. Your lawyers will get ready as if they have to show up in court. The investigation procedure is part of this preparation. They will haggle back and forth in an effort to reach an amicable divorce settlement agreement outside of court.
Your assets and your potential income are thoroughly examined as part of the preparation lawyers make to support your position, including:
- Worth of personal possessions, such as furniture, jewelry, and valuables
- Banking and credit card information
- Funds for retirement or other accounts
- education and work experience
- Assets and income
- Real estate
- cars, rvs, boats, etc.
- Salaries and work history
- Life insurance policies
- Trust funds
Finding out any relevant information regarding the matters you need to be aware of, such as any information about:
- The name and address of every person who has knowledge of any discoverable information
- Tangible things
Divorce discovery typically entails:
- awareness of any experts and witnesses scheduled to testify in court
- Depositions: in-person interviews
- Written questions
- producing the requested documents or things
- Permit to access a property for purposes of inspection or for any other reason
- Mental Examinations
- Physical examinations
In some situations, you might still have some degree of privacy. In Nevada, neither an attorney nor a judge has the authority to order you or your spouse to reveal any private communications you may have had while you were married. Which information is considered confidential is determined by a variety of circumstances. It’s best to speak with your lawyer about any sensitive issues.
What does the divorce discovery process look like?
Your attorney and your spouse or partner’s lawyer start sharing information and collecting data shortly after you file for divorce. Although each case is slightly different, these steps are often followed:
In the majority of states, married couples are required to complete financial paperwork separately and then jointly. You must both list your possessions and debts, even if you probably shared them when you were married. Your attorneys can investigate further and search for discrepancies in these records to strengthen your case.
The second step consists of written questions. The attorney for your spouse develops a list of inquiries about your background, possessions, earnings, retirement accounts, and other matters. With the help of your attorney, you provide written responses to these questions.
Notice to produce
Your attorney decides what information might be lacking (including a home appraisal, other people’s recorded statements, or significant email communications) and requests that the other party produce it for the case.
Your spouse’s attorney makes a number of claims during the Admission of Facts phase, which you must either corroborate or refute. Your spouse will receive a similar request from you. Your attorney will assist you in providing thoughtful responses because, once made, these statements are difficult to reverse.
Lists of people or organizations that have information about your marriage are compiled by both attorneys. A deposition or trial testimony may be demanded in some subpoenas. Others demand some sort of paperwork or verification from the individual or group.
In order to make an official statement, witnesses—including you and your spouse—go to a lawyer’s office. Every word you say is documented by a court reporter, and the other party has access to those transcripts.
Your requirement to testify at trial may not always be eliminated by a deposition. Lawyers occasionally take advantage of these chances to uncover a deception. This could be a great follow-up question if you provide one response during a deposition and a different one during trial.
What happens if my spouse won’t cooperate with discovery?
Spouses may decline to respond to questions or take part in some kinds of divorce. Each discovery is unique.
The legal procedure of discovery is overseen by attorneys. These actions cannot be opted out of or avoided by your spouse. All the details will be handled by your spouse’s attorney.
Avoid Discovery By Settling Your Differences Outside of Court
You can employ a third party to help define the terms of your divorce that eventually transfers into a final divorce agreement rather than asking your solicitors to negotiate on your behalf. It is known as “mediation” when you work with a third party to resolve your problems. With mediation, a skilled third party can assist you in understanding one another’s viewpoints and resolving conflicts.
It’s not necessary to go through a discovery process if you and your spouse have reached with each other an agreement on every aspect of your separation and divorce case. You and your partner must be in agreement on the following matters:
- Child visitation
- Child support
- Child custody
- Division of assets and property
- Health insurance matters
Also, a default divorce occurs when your spouse chooses not to participate in the divorce process and fails to show up in court. The discovery process is also not necessary in this situation.
Protecting Your Privacy During the Discovery Process
During a divorce case, the discovery process allows both parties to request and exchange information that may be relevant to the case. This process can involve disclosing personal and confidential information, which can raise privacy concerns.
During the discovery process, to respect your privacy, there are several steps you can take. Here are some of the critical things to keep in mind:
Types Of Information Can Be Protected By Attorney-Client Privilege Or Other Legal Privileges
Attorney-client privilege is a legal privilege that protects the confidentiality of communications between an attorney and his client.
This privilege promotes open and honest communication between attorneys and their clients by ensuring they can speak candidly with their attorneys without fear of disclosure.
The attorney-client privilege or other legal privileges may shield the following information in the context of a divorce case:
- Communication between a lawyer and their client. It includes any private conversations, emails, or other correspondence between the lawyer and their client to obtain legal counsel.
- The work-product of an attorney. It includes any paperwork or materials the lawyer prepares before a lawsuit or trial, such as case strategies, legal research, or other trial-related materials.
- Confidential information. It includes any information that is confidential or privileged, such as medical records, financial records, or other sensitive personal information.
- Spousal communications. Some states have laws that protect spousal communications from disclosure, which means that communications between spouses may be privileged and protected from disclosure during divorce proceedings.
The attorney-client privilege is not always guaranteed; there are instances in which it might be waived or irrelevant. For example, if the client discloses information to a third party, it may lift the privilege.
Furthermore, the privilege may not apply if the client communicated in furtherance of a crime or fraud or did not seek the attorney’s services for legal advice or representation.
Keeping Assets Found In Discovery
When couples seek divorce, you can lose the ability to alter or revoke a trust or change the life insurance policy’s beneficiaries. Though if you make adjustments, the court could still require you to update your records as part of the divorce decree.
Also, you cannot modify the beneficiary on an ERISA retirement account while you are separated if your spouse approves the change and signs the change. On the other hand, if an IRA account is opened in your name, you can change the beneficiaries.
If you and your spouse jointly possess a revocable living trust, it can have clauses that forbid modifications during a divorce or separation. Nonetheless, you may be allowed to change the beneficiaries in some revocable trusts. Irrevocable trusts may have provisions laying out how the trustee must manage the assets in the event of a divorce or separation.
You may submit a “Equitable Distribution” claim if you believe your spouse intends to dispose of, deplete, sell, or do anything else that could reduce the value of the property before distribution. An ED claim requests the court to halt your spouse from disposing of, exhausting, selling, or taking any other action that could lower the value of the property until you consent or the court determines.
Property that both parties purchased before getting married will not be divided by the court. The court can not divide any property that you receive as a gift or by inheritance either. Professional and business licenses are both distinct pieces of property.
You or your ex-spouse can amend whatever the court did not explicitly order as a component of the divorce settlement after the finalization of the divorce.
Donn W. Prokopius, Chtd Can Help
Contact Donn W. Prokopius, Chtd. if you are concerned about the discovery process and would prefer to avoid discovery in a divorce. We deal with divorce-related concerns a lot.
Choose the best way to safeguard your assets during the discovery process by consulting with us. We take into account the finest procedures for you throughout separation, divorce, and the days afterwards. Consider your asset holding strategy at every stage of the divorce process.
Find out how we’re able to help you in this difficult time by getting in touch with us right away. Set an appointment or consultation with us or call us on (702) 474-0500 for more information and questions.