Why Discovery is Important in Every Divorce to Avoid Getting Burned

Written by: Mikaila Matt

When going through a divorce everyone wants an uncontested divorce. However, each marriage is different. Sometimes, there is suspicion that a spouse is having an affair. Or, in some marriages, one spouse may not know anything about the household finances.

Through discovery in divorce, you might confirm suspicions or find out things you didn’t know anything about. Even if your goal is to have an uncontested divorce, you may need to start by filing a contested divorce so you can obtain discovery from the other party. 

What is Discovery?

Discovery is a process to obtain any relevant, not privileged documents or information related to the claims and defenses of the case. SCRCP Rule 26(b). Discovery can be conducted in a number of ways:

1 Interrogatories

As provided by Rule 33, SCRCP, Interrogatories are written answers to questions that are signed under oath. There are standard interrogatories and supplemental interrogatories. The four standard interrogatories we ask in almost every case are:

• Give the names and addresses of persons known to the parties or counsel to be witnesses concerning the facts of the case and indicate whether or not written or recorded statements have been taken from the witnesses and indicate who has possession of such statements.
• Set forth a list of photographs, plats, sketches or other prepared documents in possession of the party that relate to the claim or defense in the case.
• List the names and addresses of any expert witnesses whom the party proposes to use as a witness at the trial of the case.
• For each person known to the parties or counsel to be a witness concerning the facts of the case, set forth either a summary sufficient to inform the other party of the important facts known to or observed by such witness, or provide a copy of any written or recorded statements taken from such witnesses.

Rule 33, SCRCP, also allows each party to ask up to 50 supplemental interrogatories. These can be used to obtain substantive information about assets and debts, inquire about whether a party wants to receive (or is willing to pay) alimony, and identify relevant details about who has been the primary caretaker for any children. Because you can ask no more than 50 supplemental interrogatories, it is best to use them thoughtfully based on the issues in your particular case.

2 Requests for Production

Rule 34, SCRCP, addresses Requests for Production. These are demands for the other side to produce specific documents or otherwise allow you access to them. You can also ask for access to property to inspect it, such as for an appraisal.

In divorce cases, it is common to ask for documents related to income, bank accounts, retirement funds, expenses, and debts. If a case involves custody of children, you might ask for documents related to medical needs, extracurricular activities, health insurance coverage, and extraordinary expenses incurred for the benefit of the children.

There is no limit to the number of Requests for Production you can send to the opposing party. 

3 Requests for Admission

Requests for Admission demand the other party answer specific fact questions under oath, as provided by Rule 36, SCRCP. The responses will be formatted as either an admission or denial of the allegation. If the receiving party fails to respond to Requests for Admission within 30 days, then the requests are deemed admitted.

Requests for Admission can also be used to ask the opposing party to admit a specific document is authentic, which can reduce the amount of court time – or the number of witnesses – needed for trial.

Except for requests to authenticate documents, each party is limited to 20 requests for admission.

4 Depositions

Depositions are controlled by Rule 27, SCRCP. A deposition requires a witness to provide testimony under oath but outside of a court proceeding. During the deposition, a court reporter transcribes all of the questions and answers.

In our cases, depositions are most commonly used to obtain the testimony of witnesses who are reluctant to voluntarily testify or who cannot be available to testify during a trial. Depositions can also “lock in” what a witness can testify to at trial before they have had a chance to be influenced by the other party.

5 Subpoenas

Most people have heard of subpoenas but do not the specifics of how subpoenas work. Under Rule 45, SCRCP, a subpoena can be used in 4 ways: (1) to obtain documents; (2) to inspect premises; (3) to require a witness to appear at a deposition; and (4) to require a witness to appear at a trial or other hearing.

For purposes of discovery, subpoenas are most frequently used to obtain documents from someone who is not part of the divorce case. Some examples include sending subpoenas to banks or credit card companies or to a medical provider or school. Sometimes, the types of subpoenas are combined, such as requiring a witness to appear for a deposition and bring a specific set of documents with them.

Why do people hesitate to do discovery?

Frequently, people want to skip the discovery process because they do not want to be buried in documents. They also do not want to respond to their spouse’s discovery requests.

Many people assume discovery in divorce will make their case more expensive or contentious. The truth is discovery can make your divorce more contentious if you, or your spouse, is trying to hide information. Conducting discovery is one way to identify whether your spouse is withholding information relevant to your divorce.

You should always remember: the questions asked and the extent of discovery can be determined based on your budget and goals for the case. Requests can be narrowly tailored to help minimize the burden and expense of discovery.

What if someone refuses to answer discovery?

Each of the rules cited above gives a timeline for when responses to requests must be provided. Typically, responses must be served within 30 days of the requests.

Because divorce cases involve significant financial issues and questions about child custody and visitation, discovery can be extensive. Sometimes, it is simply impossible to provide thorough and complete responses within 30 days. For that reason, extensions to answer are frequently asked for and usually granted.

However, there is a difference between your spouse making a good faith effort to provide the requested information and them simply ignoring your right to obtain it. After extending some grace, it is appropriate to file a Motion to Compel, which is permissible under Rule 37, SCRCP.

If the Family Court orders a spouse to complete discovery during a Motion to Compel hearing, then the party requesting the discovery is often entitled to an award of attorney’s fees for having to file the motion.

In some cases, if a party has repeatedly refused to comply with the Court’s orders to complete discovery, the Family Court can hold them in contempt or sanction them, such as by limiting the evidence they can present at trial.

What are Your Next Steps?

An experienced Family Law Attorney can help you decide how to use the discovery process to your advantage in your divorce case. Schedule a consultation with a Dell Family Law attorney to find out more about how discovery can protect you during divorce.