Discovery is a legal method for you and your lawyer to obtain information about your case from your spouse or other sources. Discovery mechanisms generally fall into four categories: releases, interrogatories, depositions, and subpoenas.
Depositions are sworn testimony taken under oath in an informal setting, such as the lawyer’s office, in the presence of a court stenographer. The stenographer records the testimony word for word and prints a transcript of it. This transcript can be used subsequently at trial in the event that the witness, presumably your spouse in this case, gives a different answer at the trial, or for some reason becomes unavailable to testify at the trial. Like interrogatories, you can basically ask any question that you want which pertains to the marriage. That leaves the field wide open.
Depositions are wonderful tools for preparing cases and for trial. Imagine being able to ask your spouse in advance what arguments he or she intends to use, witnesses he or she intends to call, and what he or she is going to say about you on the stand. Depositions settle more cases than almost any other vehicle available to you and your attorney.
The drawback to depositions is that they are expensive and time consuming. You must decide upon which questions to ask your spouse, and your lawyer will also make a list of questions to ask your spouse. You and your lawyer will need to discuss these questions in advance and make sure you have all the bases covered; your lawyer is then present at the deposition. This adds up to a great deal of legal time.
You also must pay for the court reporter, which is frequently quite expensive. Ask your lawyer in advance to approximate how much the court reporter’s fees will be for a deposition so that you may budget accordingly.
A subpoena is a legal document which may be issued by the court or your lawyer requesting that certain witnesses or documents be made available on a certain date. Subpoenas generally must be served by a sheriff in advance of the court hearing, deposition or other proceeding at which the witness’ presence is being requested.
Your lawyer will need a certain amount of time prior to the date of your next hearing, deposition, or other proceeding to issue subpoenas and have them delivered to the necessary parties, so you will want to let your lawyer know in plenty of time what information you need and from whom.
The most common use for a subpoena is for wage and pension records. If you believe your spouse has lied (or even has made an innocent mistake) about his or her wages, get a copy of the wage documents from the employer. The second most common use for a subpoena is to obtain bank records. If an account is solely in your spouse’s name, and is not provided as part of a voluntary exchange of documents, you can obtain the missing statements with a subpoena. You can also use a subpoena to double check records received from your spouse which look suspicious; for example, a dishonest but clever spouse with a container of white-out can misrepresent balances or withdrawals. For articles, plans and checklists see http://www.peace-talks.com/divorceinformation.php. Some terrific books are listed at http://www.peace-talks.com/books.php.
Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.
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