Lawyers have a way of making even the most mundane task sound overly complicated and confusing. When lawyers throw around the term, “Discovery,” more often than not they are referring to information that the other side has not disclosed and how they will go about getting (or discovering) that information.
This usually means income and property information of the other party, but it can mean many other things as well. The good news for military divorce cases is that most of the income information is usually readily available – unlike the income for folks owning or working in cash businesses such as restaurants. If you can get a copy of the Military Leave and Earning Statement or “LES”, you have just received a very valuable piece of information in the Discovery Process. For example, an LES will detail the paygrade, pay entry base date, monthly base salary, BAH and BAS amounts, as well as information concerning SGLI payments, allotments, TSP – and a host of other relevant information. You do want to be careful – and of course consult with an attorney – because simply getting an LES statement is not the end of the matter by any means. If you are the service-member, you want to conduct Discovery with an attorney to ascertain all of the income your spouse may have earned over the past year or years.
Once a divorce action has been filed, it is necessary to get every detail about the marital home, estate and income information, as well as savings, retirement and investments. This list certainly isn’t all inclusive. So how do you go about getting gall of this information particularly if your spouse is the one who handles the finances? The easiest and cost-effective way that we first utilize is what is called “Request for Interrogatories.”
Request for Interrogatories
Interrogatories are simply a list of questions which asks details about the assets, liabilities and often even custodial information of the children. These questions can be about income, bank accounts, property, retirement accounts, investments, TSP, SGLI, whether or not the post-9/11 GI Bill has been used, among many others. Sometimes these interrogatories even assist in identifying potential witnesses who can testify to facts in your case.
Request for Production of Documents
In conjunction with a Request for Interrogatories, another Discovery tool is a “Request for the Production of Documents.” To follow up on the list of questions, you can also request that the other side turn over various documents. These can include: income statements, tax returns, deeds, documentation about vehicles, and many other items in addition.
In some cases, it is necessary to “depose” the other party. This can mean taking the other side’s deposition – which is a proceeding under oath that is transcribed by a court reporter where the attorneys ask questions of the other party to the case. Since these statements are under oath, they may be able to be used later in court. Sometimes other fact witnesses can be deposed – like babysitters or even the girlfriend your husband is sleeping with.
Request for Admissions
Another Discovery tool that we sometimes use is what is called, “Request for Admissions.” Admissions require the other party to admit or deny certain facts or questions and these must be answered within 21 days (if filed properly after a case has been initiated in the proper court). This can be a power tool in the Discovery Process and these admissions can sometimes be used against the other party at trial later.
Subpoena Duces Tecum
Finally, attorneys can issue “subpoenas duces tecum” to the other party’s employer and request information about income, benefits, retirements and even vacation time. It can be complicated subpoenaing documents from the U.S. Government, so you will most definitely want to consult with an attorney about all of the required steps involved so that you can properly discover all of the relevant information.
The whole point of the Discovery Process is to arm yourself with as much information as possible so that you do not settle your case only to find out that you left out many valuable or important assets that you were entitled to. There is no one way to get through the Discovery Process and some attorneys have a particular way in which they like to accomplish this. Sometimes the facts of the case require the use of more of these tools rather than less, while in some cases, the parties are forthcoming and can mutually work together with minimal effort and minimal expense to exchange information.
When the Discovery Process breaks down or one party is not willing to be as forthcoming as is required, attorneys can then file “Motions to Compel Discovery”. These must be properly issued and only after a case has been formally initiated in court. What this means is that one side moves the Court (or asks the Judge) to compel the other side to cooperate in the Discovery Process. If the person then fails to cooperate, he or she can be held in contempt of court and this can also severely impact his or her case. It is important that you speak with an attorney about the Discovery Process and in particular, if you ever receive court documents in this regard, you should speak with an attorney about how best to respond and not, under any circumstances, ignore these documents or requests.