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The Role of Discovery in Divorce

One aspect of a divorce that is often overlooked or not fully understood is the process of discovery. When representing clients in divorce cases, family law attorneys need a significant amount of information about both spouses in a marriage. In uncontested divorce matters, spouses are often on amicable terms and wish to resolve their divorce matter efficiently and fairly. When a divorce matter is uncontested, divorcing couples and their attorneys can often obtain necessary information informally and without utilizing the formal discovery process. However, when the parties do not agree on issues pertaining to custody, support, property division, or marital fault, then a divorce case becomes contested and litigation is required. As part of the litigation, it becomes necessary to utilize different aspects of the discovery process to obtain information required to strongly present your case to the judge at trial.

In Tennessee, several tools are available for discovery in divorce litigation, including: (1) interrogatories; (2) requests for production of documents; (3) requests for admission; (4) requests for medical examination of a party; (5) depositions; and (6) subpoenas.

Interrogatories are questions parties send about the claims and defenses in the lawsuit to other parties. Depending on the county in which your divorce action is pending, there may be numerical limits on the number of interrogatories you can submit to the other party. Unless limited by the local rules of the family court in the county in which your divorce action is pending, Tennessee law does not provide for a default limit on the number of interrogatories one party can propound on the other.

Requests for Production of Documents are requests from one party to another party for any documents within the other party’s custody or control relevant to issues in the case. If either party (or both of the parties) object(s) to the requests for production of documents propounded by the other party, a court must balance the requesting party’s need for information against the burden and expense caused to the responding party. Generally, interrogatories and requests for production of documents are done without court involvement. In the context of divorce litigation, interrogatories and requests for production of documents are often used to obtain information from the other spouse regarding income, assets, business interests, and written communications with others.

Requests for Admission are requests sent to the other party asking him or her to admit facts about the issues in the case or the authenticity of documents. Issues agreed upon by the parties do not need to be proven at trial, so requests for admission can be an effective method of discovering necessary information or getting the other party to stipulate to important facts without unnecessarily expending resources to prove matters at trial that are undisputed by the parties. Most counties in Tennessee do not impose numerical limits on the number of requests for admission one party can propound on their spouse in divorce litigation.

Requests for Medical Examination of a Party generally require a court order (due to privacy concerns) and are generally used in cases where the physical or mental condition of a party is at issue. In the context of family law, for example, one party may request that another party undergo a medical examination if that party has a medical condition that may impact the ability of the party to effectively and safely fulfill their role as a parent. If you suspect that your spouse is using illicit substances, you may seek to obtain a court order requiring your spouse to undergo drug testing. For purposes of calculating income or assessing potential alimony awards, a party may also request that another party undergo a medical examination for the purpose of establishing that his or her spouse is capable or not capable of working in certain capacities.

Depositions are comprised of the taking of oral testimony from a witness (i.e., a spouse) under oath. A court reporter is generally present at depositions. The court reporter will swear in the witness to be deposed, records the testimony of the witness verbatim, and produces a written transcript that is available for purchase by both parties. Although the most common individuals to be deposed in divorce litigation are both spouses, a party can take a deposition of any potential witness (including expert witnesses), regardless of whether the potential witness is the opposing party or one of the spouses. Sometimes referred to as “oral discovery,” depositions are often taken later on in divorce litigation after the parties have mostly or entirely completed propounding and responding to interrogatories, requests for production of documents, and requests for admission.

Subpoenas are used primarily to obtain discovery from non-party witnesses. Subpoenas are issued by the clerk of the court in which the divorce action is pending, and once properly served upon the non-party witness, command the non-party witness to comply with the requests found in the subpoenas. Generally, subpoenas command non-party witnesses to appear at a designated time and place for the purpose of testifying at hearings, providing deposition testimony, or producing documents the issuing party believes are relevant and important to the adjudication of the case. A person who is served with a subpoena can seek relief from the court in which the divorce litigation is pending, including by asking the court to “quash” (i.e., rescind) the subpoena or to enter a “protective order,” which is a court order that limits the scope of the subpoena or the non-party witness’s duty to comply with the subpoena. In Tennessee, family courts are vested with wide discretion in deciding whether to apportion the costs of complying with the subpoena between the parties or simply imposing any costs of compliance upon the non-party witness being subpoenaed. Corporations and other entities may also be subpoenaed for documents or testimony, and spouses seeking to discover information about the other spouse’s business interests often utilize subpoenas as a method to obtain such information.

Although there is a panoply of discovery tools available in divorce litigation, it is almost impossible for a spouse to effectively use these tools without the assistance of a knowledgeable and experienced attorney. Effective use of the discovery process can assist spouses in obtaining the critical information needed to prove their case without unnecessarily increasing court costs and attorney’s fees. At Cole Law Group, our divorce attorneys can assist you in developing a comprehensive discovery strategy tailored to your specific case which carefully balances your need for information with the attendant costs and your underlying goals. Give us a call at (615) 490-6020 or send us a message on our website to schedule a confidential consultation and discuss creating your strategy today.

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