Discovery in Virginia Divorce: How your attorney finds out what you have to divide
I think that a lot of people operate under the misconception that you hire an attorney and then you don’t have to think about your divorce anymore. Sure, there may be a few court hearings or settlement conferences, and your husband will probably call to complain about a letter your lawyer sent to his lawyer, but things are pretty well handled.
In most cases, things ARE pretty well handled, but that doesn’t mean that you only have to check in as long as it takes to hire an attorney and then you can check back out again. A divorce can be a complicated process, and it involves division of all of the assets and liabilities in your marriage—that can include everything from health insurance, life insurance, retirement accounts, investments, real property, personal property (like furniture, cars, and electronics), stocks, bonds, mutual funds, inheritances, gifts, credit card debt, student loans, settlements from other court cases, and so much more. In this way, every single marriage is unique, and we have to figure out exactly what works for you based on what you have and what you owe. Some of what you have will be classified as separate (meaning that you got it before you were married, or that the property was given as a gift to you and only you), some of it will be marital (and therefore subject to division), and some of it will be hybrid (a combination of both marital and separate), but we’ll have to go through everything, item by item, and classify it before we know for sure
How will my attorney know what property I have?
Your attorney DOESN’T know about your property unless you tell her (or him). In a divorce, we use a process called discovery to help identify what is available to be divided in a marriage. During discovery, we can ask about everything, including income, sources of income, retirement accounts, investments, custody arrangements, spousal support, possible witnesses, documents that might be used in preparation for trial, credit card statements, bank account statements, mortgage statements, household bills, your personal budget, and pretty much everything else that could possibly be relevant to the outcome of the case. Usually, we’ll ask your husband’s attorney for his information, and his attorney will ask for your information. That way, everyone comes to court (or settlement discussions) with full knowledge of what assets and liabilities are available.
What does discovery look like?
When you get discovery, it will just look like a lot of paperwork. It can come in a number of different forms and be called different things, like interrogatories, request for production of documents, or request for admissions. Usually, they’re very long questions asking you for all sorts of things. An interrogatory, for example, could look like this:
List your current and annual gross income for the past three years, listing each source separately, taxable and non-taxable, stating the name, address and phone number of each source, including but not limited to: salaries, wages, commissions, bonuses, per diem, mileage allowances, expense reimbursements, incentive pay; housing, food, subsistence, quarters, clothing and other allowances, proficiency pay, combat pay, night pay; military retirement, civil service retirement, pensions, profit-sharing plans, deferred compensation plans, other retirement benefits or plans; royalties, dividends, interest, trust income, capital gains, other gains, passthroughs, notes, tax-free interest, annuities, pre-tax deductions, tax refunds or funds held by the IRS to be credited against next years taxes; loans and accounts receivable (including stock ownership agreements, buy-sell agreements, mortgages, rental income, notes and accounts receivable; partnerships, sole proprietorships, compensation as a corporate officer, director fees, consultant fees; Social Security benefits, worker’s compensation benefits, personal injury recoveries, benefits from public assistance programs, severance pay, spousal support, employment income of present spouse, unemployment insurance benefits, disability insurance benefits, Veteran’s benefits; profit from disposition of assets, inheritance, gifts, prizes or awards.
Requests for production of documents, on the other hand, could look like this:
Please produce copies of federal and state income tax returns filed by you, together with accompanying worksheets including W-2 forms, within two years of this date, and copies of federal and state income tax returns and profit and loss statements for any and all corporations, joint ventures, partnerships, or other corporate or business associations in which you hold or have held an interest within two years of this date.
That sounds like a lot of work! Do I have to do it?
Yes, you do. I won’t lie to you. Discovery isn’t very fun. It’s a lot like doing your taxes, only you have to provide a LOT more information. But there’s really no other way for your attorney to get this information. As good as we are, we don’t have any way to just “know” or “find out” this information if our clients don’t provide it to us. If you’re missing something, though, that’s okay—that’s part of the reason why we’ll ask your husband for his information, too.
…But I don’t want to tell him about everything! Can we not tell him, or surprise him in court?
If we don’t provide answers to the questions your husband’s attorney asks in discovery, there can be terrible consequences. The judge can order that you pay your husband’s attorney’s fees, that things be divided in your husband’s favor, or even that everything that you didn’t answer will determined in his favor instead of yours.
Surprises in court only happen in the movies. In real life, all of this information is collected and carefully analyzed long before we set foot in a courtroom. If we don’t provide something, we may be pulled into court on a motion to compel (trust me, you don’t want that), or the other attorney can ask to have your surprise information excluded at trial if it wasn’t provided beforehand (you don’t want that, either). We’ve all got to play by the rules.
Discovery isn’t very fun, but it’s definitely one of the most important parts of the entire divorce process.