Motion to Compel: Discovery in Virginia Divorce

Posted on Nov 6, 2013 by Katie Carter

A motion to compel is how we enforce our discovery requests. When the other side isn’t responding, or hasn’t given us all the information we’ve asked for, and the deadline has passed, we can file a motion to compel to ask the judge to force them to answer discovery (and, sometimes, to punish them for not responding to us).

When would a Motion to Compel be filed?

When we send discovery out, we send it with a deadline, whether we’ve sent it to your husband’s attorney or, if he’s not represented by an attorney, to your husband directly. Usually, once we’ve sent discovery, he will send discovery back to us, also with a deadline attached. If he sent discovery to us first, we will then send our discovery requests to him.

There’s a little bit of game playing with discovery. These deadlines aren’t nearly as hard and fast as deadlines imposed by the court. (For example, once you have a complaint served on you, you know you have 21 days to respond—and the court will absolutely enforce that 21 day deadline.) If we’ve submitted discovery first, usually we’ll want to get his answers back before we send your answers to the other side—even if that makes us technically late in answering. And vice versa—if they have asked you for discovery first, it’s unlikely that the other side will give you his answers when you haven’t provided yours.

Sometimes, attorneys are purposely flexible with each other when it comes to discovery, because it can be difficult to get together all the requested information. As a professional courtesy, we do try to be accommodating where possible, but never to the extent that it jeopardizes our client’s case.

Simply put, we can go to court whenever the other side isn’t doing exactly what they are supposed to be doing. However, that doesn’t mean that, strategically, it’s the best choice for us. It may seem obvious, but we definitely don’t want to file a motion to compel to get the other side to answer discovery if we haven’t completely complied with all the discovery requests that were sent to us. Your attorney can help you decide if a motion to compel will be beneficial in your case.

Will the judge punish my husband for not answering?

Eventually, yes. In most cases, the judge won’t punish your husband the first time we go into court on a motion to compel. The judge will probably be irritated, ask your husband why he hasn’t responded, and set a date by which he must submit his responses to you (or your attorney, if you have one).

If you have to take him to court more than once on a motion to compel, then it becomes more reasonable to start to expect sanctions. At that point, you can start asking for attorneys fees, and also that your unanswered requests for admissions be deemed admitted. For more information on requests for admissions, click here.

The judge wants you and your husband to cooperate and do the research, and, eventually, you’ll both have to comply. If he doesn’t, eventually there will be consequences.