Requests for Admissions: Discovery in Virginia Divorce
Requests for admission are another tool we can use in discovery to get the information we need out of the other side. If we use them, we often send them along with the interrogatories and requests for production of documents. For more information about interrogatories and requests for production, see my blog by clicking here. For more information on the discovery process generally, click here.
What is a request for admission?
A request for admission is a much narrower question than the kind we would ask in an interrogatory, because we’re not asking the other party to give a long, drawn-out, elaborately detailed answer. Instead, what we’re looking for here is just a simple admit, deny, or plead the fifth.
For example, a request for admission could look like this:
“Admit or deny that you have a bank account at Wells Fargo.”
Your husband would have no choice but to either admit or deny the statement. Because you’re going through a divorce, you’re probably concerned that he’s going to do everything he can to keep the truth from you. I talk to women all the time who are panicked that their husband is hiding assets or lying about other things that they need to know about in their divorces. It’s possible, but that’s exactly why we go through this process. Remember, that these discovery documents are signed, so by asserting that something is either true or false, your husband is making a statement that could come back to haunt him in court if he lies.
When can he plead the fifth?
When you say that someone has “pled the fifth,” they have invoked their right, under the Fifth Amendment to the U.S. Constitution, to not incriminate themselves. So, in order to “plead the fifth,” we would have to be asking your husband about information that would incriminate him in some way. By that, I mean that what we’re asking would have to relate to whether or not he has committed some crime.
The most common scenario we see in divorce has to do with adultery. In Virginia, it is still a crime (a misdemeanor) to have sex with a person who is not your spouse. If we were asking questions about whether your husband committed adultery, he could plead the fifth. Of course, he couldn’t plead the fifth if we asked whether, for example, he checked into a hotel with a woman on August 15th. He couldn’t plead the fifth if we asked whether he took a woman with the initials A.R. to dinner on September 4th. And he also couldn’t plead the fifth if he was walking, hand in hand, with a woman down the Virginia Beach Boardwalk on October 22nd. He could only plead the fifth if we asked whether he had sex with a person who was not his wife, because it is the sex act that is the crime—not the fact that he was with someone else.
What if he doesn’t answer?
Requests for admissions are special. If your husband doesn’t answer, we can take him to court on a Motion to Compel. Usually, the first time in, the judge will give him a date and insist that he answer the questions, but if we have to keep taking him to court, the judge can make a ruling that deems everything in the request for admissions as admitted for the purposes of the litigation. It doesn’t work that way for any other type of discovery tool; this is unique to requests for admissions. So, what does that mean? Well, basically, if we’ve asked questions about adultery, the judge is going to assume that he has admitted everything we’ve asked. If the questions are the same examples we’ve discussed earlier, the judge can assume that your husband checked into a hotel with a woman on August 15th, took a woman with the initials A.R. to dinner on September 4th, walked hand in hand down the boardwalk on October 22nd, and the judge can even assume, if you’ve asked this question, that he has had sex with another woman. That’s pretty powerful stuff!