You have just filed for a divorce, and within a few days, the opposing party has sent a list of documents that you need to produce going back several years, and something called interrogatories asking a lot of questions that your spouse should already know. You call your lawyer and ask “Do I really have to respond to these?” And the answer is yes.

Discovery is one of the least talked about steps in divorce, but it is often among the most important. Discovery is the pre-trial phase in a lawsuit during which each party can obtain evidence from the opposing party. The purpose of discovery is to ensure that both you and your spouse have access to the same information. In this way, you can either negotiate a fair agreement or have all of the facts and documents to present to the judge at trial. The discovery process enables you and your spouse to meet on a more level playing field when it comes to settling your case or taking it to trial. You and your spouse both need the same information if you hope to reach agreement on any of the issues in your divorce. Similarly, a judge must know all of the facts to make a fair decision.

The discovery process may seem tedious at times because of the need to obtain and to provide lots of detailed information. Completing it, however, can give tremendous clarity about the issues in your divorce. Trust your lawyer’s advice about the importance of having the necessary evidence as you complete the discovery process in order to reach your goals in your divorce.

The type of discovery include:

  • Interrogatories—which are written questions that must be answered under oath
  • Requests for production of documents—asking that certain documents be provided by you or your spouse
  • Requests for admissions—asking that certain facts be admitted or denied
  • Subpoena of documents
  • Depositions—in which questions are asked and answered in the presence of a court reporter but outside the presence of a judge.

Factors that can influence the type of discovery conducted in your divorce can include:

  • The types of issues in dispute
  • How much access you and your spouse have to needed information
  • The level of cooperation in sharing information
  • The budget available for performing discovery

At times it seems harassing to think that you must respond in writing to questions that your spouse already knows, or to produce documents about financial accounts that either party can easily obtain. However, remember that while your spouse may know this information, the lawyers for your spouse (and maybe even your lawyer) do not have all the information. By assembling the information now, it will help to educate all the participants and may help facilitate an early settlement.

The Arizona Rules of Family Law and Procedure also require that the parties exchange certain information voluntarily at the start of the case. This is often referred to as disclosures under Rule 49. Depending on the issues involved in your case, you will need to voluntarily exchange information about:

  • Child support (income, insurance premiums, school expenses, expenses for the special needs of a child).
  • Spousal maintenance (income)
  • Property (deeds, purchase agreements, escrow documents, monthly financial account statements, retirement accounts, cash surrender value of life insurance, valuations, appraisals, tax returns, items of personal property)
  • Debts (monthly or periodic statements showing debts owed, copies of credit card statements)
  • Witnesses and expert witnesses

You have a continuing duty to disclose information when new or different information is discovered or revealed. Discuss your disclosure obligations early with your attorney so that you can promptly gather the necessary documents. Just keep in mind, this may seem like an unreasonable step, but it is a necessary part of the divorce process.

About the Authors:

Marlene Pontrelli is a Member in our Phoenix office. Marlene is a certified specialist in family law. Her practice focuses on all aspects of family law including dissolution, post-dissolution, paternity, child custody and child support matters. She is admitted to practice in California and Arizona. She is a member of the State Bar’s Family Law Practice and Procedure Committee and is a judge pro tem for the Superior Court of Maricopa County in family law. She has extensive trial and appellate experience including appearing before the Arizona Court of Appeals, Arizona Supreme Court and Ninth Circuit Court of Appeals.

Ms. Pontrelli has written several books, including as a co-author of the Divorce in Arizona book. She is a frequent lecturer in the area of family law and has conducted workshops throughout the country. Ms. Pontrelli is also an adjunct professor at The Sandra Day O’Connor School of Law at Arizona State University, where she teaches the family law class. Marlene may be reached in our Phoenix office at 602-285-5081.

Bob Schwartz is a Member in our Phoenix office. Bob has been practicing law for over 40 years, specializing in family law. He is a member of the American, Arizona and Maricopa County Bar Associations. He is admitted to practice in the federal courts of New York, Arizona, Ninth Circuit Court of Appeals, and the U.S. Supreme Court. Mr. Schwartz is a fellow of the American Academy of Matrimonial Lawyers and past president of the Arizona chapter. He serves as a judge pro tem for the Superior Court of Maricopa County in family court matters. He is a certified family law specialist by the State Bar of Arizona; is a frequent lecturer on family law and related matters; and, former member of the State Bar Family Law Advisory Commission. Mr. Schwartz has tried numerous complex business valuation cases as well as complex custody cases. He has testified as an expert in family law matters. Bob co-authored the Divorce in Arizona book. He may be reached in our Phoenix office at 602-285-5020.