The Discovery Money Pit

There’s no question that you need to gather information to prepare for divorce.

You need to know how much the house is worth. You need to know where the bank accounts are, what’s in them now, and whether your spouse has taken money out of them. You need to know what retirement plans your spouse owns, and what they’re worth. You need a comprehensive, accurate picture of everything you and your spouse own and everything you owe. You need to know your spouse’s income and expenses.

Many lawyers routinely gather this information using discovery. There are four primary tools of discovery:


Requests for the Production of Documents


Requests for Admission

We’ll finish up by thinking through When Do You Really Need Discovery?, and we’ll talk about What You can Do to keep control of discovery.


“Interrogatories” is just a lawyers’ word for questions. Lots of questions. The Rules of Civil Procedure in effect in most states say you can’t ask more than 40 questions without the court’s permission (and yes, each subpart counts as one of the 40), but most courts grant the permission routinely.

Typically, one spouse’s lawyer prepares a lengthy set of interrogatories and serves them on the other spouse’s lawyer. In most states, the other spouse has 30 days to answer the interrogatories, 45 days if they’re served with the complaint for divorce. People are routinely late answering interrogatories, so Motions to Compel are routine. (A Motion to Compel is a request that the judge order the other side to answer interrogatories).

Most lawyers use “canned” interrogatories. That means they keep a standard form of interrogatories on word processor and adapt it as necessary. Whenever they get a tough question from an opposing lawyer, they add it to their standard form.

So their standard form interrogatories keep getting longer and longer.

Requests for the Production of Documents

They’re basically what the name implies. These are requests that the other spouse provide some kind of “thing.” It could be a report, a tax return, a photograph, a tape recording, or any number of other documents. Just as lawyers use canned interrogatories, most use canned Requests for the Production of Documents. Unlike the case with interrogatories, there’s no limit on the number of Requests for the Production of Documents.


If you’re trying to get down and dirty in a good old adversarial divorce fight, there’s just no substitute for a deposition. The best divorce lawyers can use depositions to devastating advantage, simultaneously charming, disarming, and intimidating the opposing spouse, all while gathering crucial information for trial.

A deposition is the chance for a lawyer to ask questions of any witness and have them answered under oath, with a written record. If the witness later says something different, the lawyer can point out the inconsistency. A deposition “locks in” a witness’s testimony so that it can’t change significantly. It’s also a chance for a lawyer to find out the strengths of the other side’s case and the weaknesses of his or her own case.

Depositions are also a great way to run up a big legal bill. A typical deposition of the opposing spouse, even in a relatively uncomplicated divorce, would run 3-4 hours. You can multiply that by your lawyer’s hourly rate, then double it for the other side’s hourly rate, then add $200 or so for the transcript. Real money quick. Not to mention the time lost for you and your spouse. See what I mean about the Discovery Money Pit?

If you’re about to be a witness in a deposition or a trial, there’s a page of guidance for you.

Requests for Admission

Requests for Admission are used relatively rarely in divorce but can be effective. A Request for Admission basically says “Admit or deny that __________.” If the party fails to respond within the designated time period, usually 30 days or so, the statement is theoretically deemed admitted. I say theoretically because judges are notoriously reluctant to enforce the Rules of Civil Procedure when it comes to Requests for Admissions.

When Do You Really Need Discovery?

You obviously need discovery when you and your spouse aren’t talking to each other except through your lawyers. In that case, the two of you have lost control of your divorce, it’s up to the lawyers to resolve it, and you just stand by and watch them work. And pay their bills.

I think you also need discovery if the two of you are heading for an adversarial trial. In that case, even if the two of you are talking with each other, your lawyer will need to use discovery. He or she will need to probe the other side to find out what your spouse knows, how your spouse will attack you, and how your spouse plans to defend against the charges you make. All very brutal, but necessary if you’re heading toward an adversarial trial.

If you’re hopeful of resolving your divorce issues in mediation, though, all you need to do is gather the necessary financial information. That’s where DivorceSavvySavesMoney comes in. It allows you to gather the thorough, accurate information you and your spouse need to resolve the issues of your divorce.

Yes, it’s all under oath, just like discovery would be. And you don’t have to pay your lawyers thousands of dollars to gather it. You can always go through formal discovery (and spend all that money) if you’re unable to resolve the issues in mediation.

What You Can Do

Sometimes you’re just stuck with discovery. Even if there’s no way around it, though, that doesn’t mean you can’t take some steps to stay in control of the process.

Insist that your lawyer not send out any interrogatories or requests for production without letting you look them over first. Good lawyers will welcome your participation.

The reason you want to review the questions is that no one knows more about the facts of your divorce than you do. You’re the only one who might recognize that a question is poorly worded to get to the facts you really need. You might also recognize that an entire line of questions will yield nothing useful and therefore can be eliminated.

Most of the real expense of dealing with discovery doesn’t flow from preparing the questions. It flows from gathering information and thinking through how to answer the questions. It flows from digesting and responding to the answers once you get them.

You always want to save your lawyer time. Anything you can do to help save your lawyer time in answering discovery requests or in digesting and responding to the answers will be money in your pocket.

For example, if you’re the one answering discovery, ask your lawyer to show you a set of answers that he or she thinks are particularly well-drafted. You can take those answers and fashion answers to your requests using the same style, for your lawyer’s review.

If at all possible, try to match up with your lawyer’s word processor. Many lawyers aren’t at all handy with computers.

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