A brief guide to discovery in divorce and custody cases

What is discovery?

During a divorce or custody case, both parties may need to obtain documents or information from the other party related to the issues in the case. The party can use that information or those documents as evidence in the case. The process of requesting documents or information from the other party is known as discovery.

How do you request documents from the other party?

In a divorce case, the easiest way for a party to request documents from the other party is by serving a Request for Production of DocumentsThis is the most common method of doing discovery in a family law case. This is a written request for documents that parties can serve on the each other to request necessary documents, such as bank records, property records, insurance information, and other records relevant to a divorce or custody case. If you serve a request for documents on the other side, they must respond to your request within 30 days.

How do you respond to requests for documents from the other side?

If you are served with a Request for Production of Documents by the other side or a discovery notice, you must respond in writing, within the time specified in the request (you must be given at least 30 days to respond). Before responding, you should make reasonable efforts to try to find all the records the other side is requesting. In your written response, you should indicate what documents you are providing and also note whether you object to any of the requests.
You can object to requests for documents that:
  • You do not have, despite conducting a reasonable search for the documents.
  • Do not exist (for example you may be asked to create a document).
  • Are protected by confidentiality or privilege (such as medical records, drug or alcohol treatment records, or therapy records).
  • Too burdensome to provide, either because the cost of getting the documents is very expensive, there are a lot of documents, or it would take you a lot of time to find all the documents.

Subpoenaing records

Another common method of conducting discovery in family law cases is by subpoenaing records directly from the record holder, such as a bank or other financial institution. If you need help subpoenaing records from a record holder, please contact The Commons for help.

What happens if either party does not provide the requested documents?

If a party does not provide documents, there are additional legal steps you can take to force the party to provide documents. If you need help obtaining discovery, please contact The Commons for help.

The Commons Law Center Blog is for information purposes only. It is not legal advice.

posted July 14, 2023

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