North Carolina Divorce Discovery Law Firm
Navigating the Divorce Discovery Process in North Carolina
At Miller Cushing Holladay, our Charlotte family law attorneys help clients handle every aspect of divorce, including the discovery process. In North Carolina, discovery is a critical part of the divorce process. Governed by the North Carolina Rules of Civil Procedure, it refers to the organized exchange of information between parties to a lawsuit. Through this process, both parties provide documents and exchange information to ensure the case proceeds fairly and that each party has the knowledge needed to make informed decisions. Discovery is an essential stage of any case, as it can be used to help the parties settle the disputed issues or narrow the issues for trial.
Parties to a lawsuit may obtain discovery regarding any matter, excluding privileged information, which is relevant to the subject matter in the case. In family law cases, discovery encompasses exchanging information relevant to divorce, including assets, debts, income, factors relevant to child custody, and even evidence of marital misconduct. Since many divorces involve complex financial issues and disagreements between spouses, discovery enables each party and their respective attorneys to gather the information needed to protect their interests and work toward a fair resolution.
There are two primary ways that information is obtained in a family law case: voluntary, informal discovery process or mandatory, formal discovery process. Which approach is appropriate depends on whether a court case is pending, the level of cooperation between the parties, and the specific circumstances of the case.
Voluntary Discovery Process
If possible, parties may engage in voluntary discovery. Voluntary discovery is an informal process that allows both parties to exchange documents and information for settlement negotiations without relying on court-enforced procedures. Each party may request documents or information, and the parties voluntarily provide what is requested.
Voluntary discovery is often more cost-effective and less time-consuming. It can be especially useful in cases where the parties are working toward a settlement outside litigation. The parties exchange documents before negotiations in hopes of reaching a settlement agreement. Parties may attempt voluntary discovery at first and later determine that mandatory discovery is a better tool for their case.
If a case is already pending in court, voluntary discovery may still be possible if both sides act in good faith. Whether voluntary discovery is right for your case is a decision to make with your divorce attorney, as it depends on the opposing party’s level of transparency and the specific facts of your case.
Mandatory Discovery Process
If cooperation is limited or contested issues exist in your case, mandatory discovery becomes necessary. Mandatory discovery is a formal, legally binding process governed by the North Carolina Rules of Civil Procedure that parties must follow. Unlike voluntary discovery, this process compels the opposing party or a third party to provide the requested documents or information.
Common discovery methods include:
- Interrogatories;
- Requests for Production of Documents;
- Requests for Admissions;
- Depositions; and
- Subpoenas.
Thorough discovery is essential to ensuring a fair and equitable resolution of every case given that it provides a complete picture of the marital finances, identifies and values assets, uncovers hidden income or property, and verifies the accuracy of your spouse’s disclosures. The information obtained through discovery is then used by your attorney to build strong legal arguments for negotiations or trial.
While discovery has limits and each party has the right to object to unreasonable requests, mandatory discovery can be a powerful tool since failure to comply may result in contempt of court and the award of attorney fees.
Although discovery can seem overwhelming, experienced legal representation makes the process manageable, and it provides the knowledge necessary to make fully-informed decisions for your case and future.
Discovery Methods
If mandatory discovery is necessary for your case, your attorney may use several different discovery methods to gather information before trial and ensure nothing important is overlooked.
Interrogatories
Interrogatories are written questions that one party sends to the other that require written responses answered truthfully under oath. Responses can later be used as evidence by the requesting party in court. Attorneys use interrogatories to gather specific information relevant to the case as well as to hold parties to their answers in court.
Beyond simply collecting facts, interrogatories serve a strategic purpose as well. Experienced attorneys often use interrogatories to clarify contested issues, identify inconsistencies, and determine areas that may require further investigation. The opposing party’s responses can reveal strengths and weaknesses in your position, helping your attorney develop a stronger strategy for negotiations or trial.
By carefully crafting well-written questions, divorce attorneys ensure that all relevant information is addressed. This gives parties a clearer understanding of the case and a stronger foundation for legal decision-making.
Requests for Production of Documents
Requests for Production of Documents are written requests that one party sends to the other asking them to provide specific documents related to the divorce case. The other party is required to make available the documents requested that are in his or her possession or control. These documents can later be used as evidence at trial or during settlement negotiations. Common examples of documents requested are financial documents, like bank statements, pay stubs, tax returns, retirement account information, loan agreements, and other documents. These financial statements help provide a complete picture of marital assets to value equitable distribution, as well as provide more information for child support or alimony claims. Requests may also include digital communications, such as text messages or emails, when they are relevant to the disputed issues.
Divorce attorneys use Requests for Production of Documents strategically to verify the accuracy of the financial information disclosed by the other spouse and to uncover hidden assets or income that may not have been voluntarily reported. By carefully crafting these requests and thoroughly analyzing the information received, your attorney can build a better understanding of the case, identify potential issues, and strengthen your position for negotiations or trial.
Requests for Admissions
Requests for Admissions are written questions from one party asking the other party to either admit or deny specific statements related to the contested issues. Rather than asking more open-ended questions like those in Interrogatories, Requests for Admissions are narrowly tailored questions that require the opposing party to respond with a simple “admit” or “deny” answer. The admissions are made under oath and must be answered truthfully.
The purpose of Requests for Admissions is to simplify the issues in the case by establishing which facts are agreed upon and which are genuinely contested. When a party admits a fact through this discovery method, it is treated as a “stipulated fact” and does not need to be proven at trial.
Divorce attorneys use Requests for Admissions strategically to narrow the scope of the case and ask your spouse questions that hold them accountable for the accuracy of their statements. By carefully crafting these requests, your attorney can strengthen your position, reduce uncertainty, and ensure that the litigation process is more efficient and focused on the important issues in your case.
Depositions
Depositions are a discovery method involving in-person questioning of a party under oath. During a deposition, an attorney asks questions, and the person being deposed provides answers as sworn testimony, which is recorded by a court reporter. This sworn testimony can later be used at trial, either as direct evidence or to challenge inconsistencies in a witness’s statement.
A deposition is similar to an interview or court examination. Depositions give attorneys the opportunity to go beyond written responses and obtain detailed information directly from the source. Because the testimony is given under oath, the party testifying is legally obligated to answer truthfully, making depositions a powerful tool for discovering more information relevant to the case.
Depositions are beneficial because they allow attorneys to assess how a party or witness may present at trial. The way a person answers questions, their demeanor, and the consistency of their statements can provide insight into how a Judge might view their credibility. By carefully preparing questions and analyzing testimony, your attorney can strengthen your case, whether by reinforcing your position during negotiations or by preparing for litigation.
Subpoenas
Subpoenas are formal legal orders issued by an attorney or another authorized official, such as a Judge, that request information by compelling an individual to appear in court, attend a deposition, or produce documents. One commonly used subpoena is a Subpoena Duces Tecum which specifically requires a person or third party to provide documents or records. This can be an especially useful tool utilized by attorneys to obtain critical evidence directly from third parties, such as banks, employers, schools, or healthcare providers. Because subpoenas can compel a third party to comply, it ensures that all relevant information is obtained, even if the opposing party was not voluntarily disclosing it.
Subpoenas are also used to require a witness to provide sworn testimony at a deposition or at trial. This can be crucial in a case where a third party, such as an employer or accountant, may need to testify.
Through the strategic use of subpoenas, your attorney can obtain all critical evidence and strengthen your case with reliable information.
Failing to Respond to Discovery
Discovery is an important phase of the divorce process. Because discovery is governed by the North Carolina Rules of Civil Procedure, parties are legally required to respond to discovery within a set time frame. Failing to respond or providing incomplete answers can result in serious consequences.
If the party does not comply with the discovery process, the requesting attorney may file a Motion to Compel, asking the court to order compliance. Should the court grant the motion, the noncompliant party will have to provide the requested discovery. The court can also impose financial sanctions for noncompliance.
If you are the party unsure of answering discovery, talk to an experienced attorney to discuss what you may have when responding.
How Miller Cushing Holladay Protects Your Interests During the Discovery Process
Our team of Charlotte family law attorneys assists clients with all aspects of divorce, including the discovery process. We will review every discovery request to ensure it is proper and protect your rights while we keep the case moving forward.
We will guide you through the process of gathering documents and preparing your responses so they are accurate, complete, and honest, while protecting you from unnecessary exposure. When privacy is a concern, we will lodge objections and seek protective orders to safeguard sensitive information.
Experience matters in discovery, not only because of the legal nuances, but also because the information obtained can dramatically impact negotiations and trial strategy. Our team works closely with clients to review all of the discovery requests to make sure they have a clear understanding of the strategy for their case.
In addition to discussing case strategy, we will also always keep in mind a cost-benefit approach. This means that instead of only telling you what options you have, we will discuss the benefits of those options so that you can make well-informed decisions during the discovery process.
Frequently Asked Questions
What is the purpose of the discovery phase in a North Carolina divorce?
Discovery helps parties obtain information and documents to better understand all aspects of a case to assist with negotiating a settlement as well as preparing for trial. When done properly, discovery can both help strengthen a case at trial as well as help to prepare a better defense by understanding the other party’s case ahead of time.
What types of information can be requested during divorce discovery?
Parties can generally seek information and documents that are relevant to the issues in their case, although there are some limits, such as privilege and unduly burdensome requests for information. For example, a party in a child support case would be able to discover issues related to the calculation of child support, such as information regarding the other parent’s income, assets, debts, and expenses.
How long does the divorce discovery process usually last in Charlotte?
The length of the discovery process will largely depend on what type of discovery parties are engaging in within their case. If parties engage in informal, voluntary discovery as part of negotiating, the process can be handled in a matter of weeks as opposed to months. On the other hand, formal, compulsory discovery within a pending court case can take many months, given the time it takes to respond to discovery as well as any steps necessary to compel discovery in the event a party does not fully respond to discovery requests.
What happens if my spouse refuses to provide information during discovery?
If your spouse refuses to provide information before a case is pending, then a case may need to be filed in order to allow your attorney to issue subpoenas to third parties as well as send formal discovery requests to your spouse. If a case is pending and your spouse does not respond to discovery, then your attorney may need to file a Motion to Compel to force their responses.
Do I need a lawyer to handle divorce discovery?
It helps to have an attorney assist you through the discovery process, given that attorneys are accustomed to the process. An attorney will help you craft better discovery requests to the other side based on their knowledge of the discovery process, as well as what information will be most helpful for your case. In addition, an attorney can assist with responding to discovery by protecting your privacy where necessary through their knowledge of the law surrounding discovery.
What are interrogatories and requests for production in a divorce?
Interrogatories are formal, written questions issued by one party to another that the receiving party must answer in writing and under oath. Requests for Production of Documents are formal requests for documents that the receiving party must provide to the other party for review.
Can discovery help uncover hidden assets in a divorce?
Yes, discovery is a crucial step to discovering hidden assets. Your attorney will address this through multiple avenues. It is important to obtain documents from your spouse and to thoroughly review account statements for anything suspicious. Your attorney will also want to obtain documents directly from third parties through subpoenas to verify that the information provided by the opposing party is accurate.
How can I protect my private information during the discovery process?
When responding to a discovery issued to you, you may lodge objections in certain areas and refuse to produce certain information or documents when warranted. In some instances, it may even be necessary to request a Protective Order from the Court. Parties also have the ability to seek to limit the production of documents and information produced by third parties in certain situations.
