What is discovery in Virginia divorce?

The beginning of a divorce or child custody case is when things are the most overwhelming, confusing, and potentially intimidating. There’s often a lot of activity, and a lot of that activity sets the stage for what will come as the case reaches its conclusion.

Whether a case is contested or uncontested, the beginning is often fairly busy. Whether you’re working on preparing a first draft of a separation agreement or the first draft of the pleadings that will carry you into court, there are a lot of decisions to be made, a lot of advantages and disadvantages to carefully weigh and consider, and still so many unknowns.

The unknown is never a fun place to be, which is why it’s so good that you’re here! The more you learn about the divorce process in Virginia, the more you’ll be able to make effective decisions as your case progresses. I definitely recommend that you request a free copy of our divorce book and consider attending our monthly divorce webinar for Virginia women, especially if you’re not that familiar with divorce in Virginia and what’s involved.

I’ve spent some time recently talking a lot about the various fault based grounds for divorce: adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, and abandonment. (There’s also felony conviction, but I haven’t dedicated an entire blog post to discussing it; it’s much more self explanatory.)

Depending on whether you move forward with a fault based divorce or a no fault one, it will have a lot to do with how your case progresses and the steps that are taken towards its resolution.

When you file – which you can’t do until your grounds exist – you formally open up your case with the court, which means that you can avail yourself to all the resources the court offers you. In an uncontested, no fault case, it’s common that you won’t even file until your agreement is signed and your year of separation has already elapsed, which means that there’s no need to have a pendente lite hearing, prepare and serve and answer discovery, or schedule a judicial settlement conference – it’s already settled, after all.

Many cases that are initially filed on fault will ultimately switch over to no fault cases. Settlement happens a lot, and for a lot of reasons. But, if you’ve filed on fault, or filed a contested no fault divorce (which just means that you couldn’t reach an agreement, but that your one year of separation has already run), you will have the opportunity to use the court to facilitate your case. One of the things you can do, in a case that has been properly filed but where no agreement has yet been reached, is to conduct discovery.

What is discovery?

Discovery is the process by which we figure out what there is to divide and start to gather the answers to our questions about a case. Usually, we take the issue – whatever it is – and try to gather evidence on that particular point.

In a case that is about financial assets, we’ll ask for a lot of financial disclosures. In a case about custody, we’ll ask about that situation. It’s geared towards uncovering information, determining what the basis for argument at trial would be, and identifying evidence and witnesses. It’s only in the movies where there is a surprise witness or evidence that shocks and scandalizes the courtroom. In real life, this stuff is released ahead of time, and both sides have a chance to prepare. Of course, you have to do your due diligence to get the information – but the point of a trial is not to be ambushed.

Discovery can take a lot of forms – interrogatories, requests for production of documents, subpoenas, requests for admissions, depositions… it really depends on the case!

Interrogatories

An interrogatory is a discovery method where a question is asked and answered, in writing. Say you ask, ‘Describe your sources of income.’ A person answering that question would give a written answer, giving a succinct but comprehensive answer to the question.

In Virginia, you can’t ask more than 30 interrogatories, including parts and subparts.

Requests for Production of Documents

A request for production of documents is just that: a written request that certain documents are provided.
They often follow the pattern of the questions asked in the interrogatories. If we asked about sources of income, we might also ask for tax returns, W2s, 1099s, paychecks, or other documents that would prove what the person stated in the interrogatory.

Subpoenas

We can also do subpoenas, which are essentially request for specific information or documents. We often do them to institutions – like banks or doctor’s offices – to get information we need to support allegations or our theory of a case.

Requests for Admissions

A request for admissions is usually very specific, and it has a series of questions designed to get the other party to admit something. Discovery is answered under penalty of perjury, so a person – theoretically at least – can’t lie.

In a case where adultery was an issue, we might have questions that narrow in focus along a certain theme. “Admit or deny that you were at the Norfolk Downtown Marriott on January 1, 2021.” “Admit or deny that on January 1, 2021 you were in the presence of Ms. Jane Smith.” And so on – that way, we can see exactly what part of our theory is correct, and what is not – which helps us develop our theory of the case.

Depositions

A deposition is an event! It can be live or, these days, done via Zoom or other digital platform. It’s a live event, where an attorney questions a party (usually in the presence of his or her attorney) and a court reporter.

Everything is taken down by the court reporter, and a transcript is created. It can be used to question and cross examine the party as a witness later on. It’s often pretty intense, and a deposition can last hours!

Why can’t I do discovery in an uncontested case? Shouldn’t we be able to do discovery before we sign an agreement?

I can see your point. You’re going to reach an agreement, surely you should do so with the benefit of these tools, right?
Well, no. It doesn’t work that way. There’s no discovery, unless a case is properly filed before the court. Otherwise, there’s no means of enforcing it! In a case where you’ve already filed, deadlines apply, and sanctions can be imposed for failure to respond.

Without the court behind you, the other party doesn’t have to respond – there’s no time frame or sanctions or anything. It’s purely voluntary.

In most uncontested cases, the parties disclose information, and then, in the written agreement, signify that they’re satisfied with those disclosures. There are also protections built in, like omitted property provisions, that specify how property that was omitted would be divided in the event of their later discovery.

Discovery is nice, but it’s expensive. If you and your husband can agree to share information back and forth, there’s no reason to incur the expense. In many contested cases, though, the information simply isn’t as easy to get, and so discovery is necessary.

It’s a critical part of the process, and it has a lot to do with how we prepare for trial.

For more information about discovery, or to schedule a consultation with a licensed, experienced Virginia divorce and custody attorney, give our office a call at 757-425-5200.

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