Pro Se Litigation: What to Expect During "Discovery"

Pro Se Litigation: What to Expect During "Discovery"

Part 5 of a 6-part series

Your first choice in handling your divorce yourself (Pro Se) was to try mediation. But if that didn’t work and you have to go to divorce court, you will need documents and other information from your husband to help you make your case. The legal process for acquiring what you need from your husband (and the process by which he acquires what he needs from you) is referred to as “discovery.”

During discovery, you have methods you will use to gain information. State laws differ during the discovery process, but there are five common steps or methods to take. These may well become a part of your divorce.

• Disclosure:

Disclosure is the process by which you and your spouse discloses to each other, and the court, the documents and other evidence you intend to use in divorce court. If you believe your husband has documents or evidence – financial statements, emails, photos, letters, receipts, or videos that will help you prove your case – you should file a motion with the court requesting “disclosure” of such evidence. Your court clerk can assist you in finding the appropriate forms to file. If your court does not use forms and you have to write out your own motion just turn to Google. Do a search for “sample motion for disclosure” and you will come up with thousands of examples to help you when writing your motion.

Be warned, just because you request documents doesn’t mean you will get them. Most attorneys will stall and use any trick in the book to keep from disclosing information they know you can use against their client. If this happens you can ask the judge, at the time of the trial, to penalize your husband for refusing to disclose the requested documents. Remember, you want to send a copy of your motion for disclosure to the court clerk and a certified copy to your husband’s attorney while keeping a copy for your records. Go to court with the proof of receipt to your husband’s attorney so you can prove you filed the motion. Courts have been known to lose documents so, take a copy of everything you file with you when you go to trial.

• Interrogatories:

Interrogatories are a list of questions that you send to the opposing side. Most states set limits on how many questions can be asked, and the response time is normally 30 days. Interrogatories must be answered, truthfully, under penalty of perjury, within a certain period. The opposing party may object to answering the questions if he feels they are arduous in nature and have no bearing on the case. You have the same right of refusal.
You’ve heard the term “paper chase?” This is where that term comes from. Given the opportunity, an attorney will send an extensive list of interrogatories to the opposing party in an attempt to bury him or her in paper work. This is why most states have laws limiting the number of interrogatories.

• Admissions of Fact:

This is a written list of facts directed at your husband or anyone else you feel has information pertinent to your case. The party receiving the list of facts is asked to either admit to or deny each fact. This comes in handy if your husband owns a business and is trying to hide income. You can send a request for “admissions of fact” to his accountant or business partner and they are required to answer … honestly … within a certain period. If the party fails to answer in the time set by the court, his or her non-response is considered an admission of the facts. This normally motivates most people to respond. And remember, you may be getting an Admission of Fact from your husband’s team. Answer it within the time specified.

• Request for Production:

This is used to obtain documents like bank statements, statements of income, or any documents you feel will benefit your case. Interrogatories and Requests for Production sound similar but are different. When you request production of certain documents, you must describe the documents by individual item or by category. For example you can ask the opposing side to produce all written, recorded or signed statements of any party to the divorce including witnesses, investigators, friends, family, or employers they intend to use to prove their case.

• Depositions:

Depositions are taken pretrial when one party to the divorce questions the other party or a witness in the case. Depositions take place in an attorney’s office or the courthouse and all questions are answered under oath and recorded by a court reporter. At trial the deposed testimony is used to cast doubt on your husband’s case or possibly to help refresh the memory of another witness who may prefer to be less than honest. Normally depositions are done when a witness is unable to show up for the trial. Most courts have their own rules and regulations regarding depositions.

Depositions are expensive because you have to hire a court report, and pay for the transcript or video of the deposition. There is the expense of an attorney or paralegal if your state requires court personnel to be present. Being a Pro Se litigant taking a deposition should be your last resort for obtaining evidence.

Discovery sounds confusing and may cause you to doubt your ability to get through the process. Have faith. 
Nine times out of ten, your husband’s attorney will be the first to fire off any requests. That is a good thing because it gives you a sample of what the courts expect as far as how documents are written and how questions are asked. The process is less complicated than it sounds and once the ball starts rolling you will gain confidence.

In Part 6 of Pro Se Divorce I will have Frequently Asked Questions about the Pro Se process, plus tips and advice.