The Michigan Divorce Process, Part II: Discovery

Once a divorce has been filed and the waiting period is over, if the Complaint for Divorce hasn’t been dismissed, the first phase of the divorce process begins: Discovery. It’s during this phase of the process that each spouse’s attorneys work to (in theory, at least) uncover the truth about the other’s financial and other information that might be relevant to the divorce case. Because it’s ridiculously common for someone who just received a Complaint for Divorce to immediately start moving money around in an attempt to save as much as they can from their future ex-, discovery is a vital part of every contested divorce.

Discovery is broken into two phases: informal discovery, which is generally inexpensive and quick but also much less effective at getting to the truth, and formal discovery, which tends to cost more but produce much better results. Informal discovery essentially consists of your lawyer writing letters to various entities asking (without any real authority) for account information or other relevant pieces of data. Most financial institutions pride themselves on denying such requests, but sometimes you get lucky, so it’s generally considered worth the time and effort.

The Tools of Formal Discovery
During discovery, your family attorney will use several different techniques to attempt to discover the precise state of your spouse’s financial situation. These include:

• Interrogatories — written questions asked of your spouse that they must answer in writing within a specified time (usually 30 days). If they answer untruthfully, they are guilty of perjury. If they don’t answer at all, your lawyer will ask the judge for a Motion to Compel, at which point if they still don’t answer, they’re guilty of Contempt of Court.
• Requests to Produce — written demands that a party provide your attorney with a thing, usually a document, but potentially almost anything. Otherwise follows the rules of an Interrogatory.
• Request for Admission — basically says “You, admit or deny that ________.” This is rarely used, because many judges are leery of the device. This can be highly effective under the right circumstances, mostly because if the party given the Request for Admission doesn’t reply within 30 days, it’s assumed that they admit the statement is true.
• Depositions — sitting down with any participant in the case and asking them questions that get recorded, transcribed, and put on the record. This effectively “locks in” a witness’ testimony; if they change their answer later, their inconsistency can be brought up in court.
• Subpoenas — a court order that says “You, come to court and…” There are two basic types of subpoena: the one that ends “…testify about this event,” and the one that ends “…bring the following list of things with you.” (The second can often be satisfied without actually coming to court if the list of things consists of documents or other easily mail-able items.) While technically only a judge can order a subpoena, they’re generally pretty amenable to doing so as part of formal discovery.

The Limits of Formal Discovery
While technically the process of formal discovery can be used to uncover any fact relevant to a divorce (except those covered by some form of legal privilege or are protected in some other way, like being a corporation’s trade secret), most judges are fairly sensitive to abuse of the discovery process. An attorney that attempts to use discovery to uncover barely-related information that seems primarily intended to embarrass, or to harass and annoy a party rather than provide actual useful information will almost certainly be stopped by a judge.

What’s Next?
Once both parties have satisfied themselves that discovery is complete (which can mean either ‘we found the information we wanted’ or ‘we ran out of money to spend on further discovery attempts’), they declare as much to a judge. At that point, the spouses have to decide how they want the facts discovered to turn into a divorce agreement — and there are a startling number of options. We’ll learn about those in the next post.