Discovery is the formal process of exchanging information between parties about the witnesses and evidence they’ll present at trial. In Virginia, discovery in family law cases, such as divorce or child custody proceedings, may include interrogatories, requests for production of documents, requests for admissions, depositions, and subpoenas. The purpose of these tools is for parties to determine what evidence is available to use in a trial.
Types of Discovery
Interrogatories are written questions a party answers under oath. Virginia limits parties to asking no more than 30 interrogatories.
Requests for the Production of Documents are requests for documents, such as financial records, tax information, and employment information. Requests don’t have to be limited to paper documents, but can also include pictures, videos, and electronic media. While there isn’t a limit on the number of documents a party can request, requests are often limited to the last 5 years, absent special circumstances.
Requests for Admissions are written allegations a party must admit or deny under oath. They are similar to interrogatories, except interrogatories are typically open-ended questions, while requests for admissions are often yes/no questions. Parties are entitled to plead the fifth in responding to requests for admissions, which commonly comes into play with cases involving adultery, which is a misdemeanor offense in Virginia.
Depositions involve asking a witness questions by an attorney, which the witness must answer under oath, often completed in person. Depositions are used to ask parties about information relevant to the case at hand. In addition to deposing a party, depositions can be used to get information from witnesses, including expert witnesses.
Subpoenas are requests for materials or witness testimony from third parties.
The Discovery Process
The discovery process differs between courts. In juvenile and domestic relations district courts, a party must request permission from the court to conduct formal discovery. However, in circuit courts, the discovery process is allowed by default. Some jurisdictions utilize “model discovery,” which consists of standardized interrogatories and requests for production of documents common in divorce, spousal support, and child support and custody cases.
Any information relevant to the issues involved in the case are discoverable. In divorce cases, information is often requested regarding employment, other income, investments, property, other assets, benefits, life insurance, expenses, debts, taxes, information related to any children, and information relating to any fault-based reason for the divorce, if applicable. In child custody cases, one parent may be seeking sole custody and doesn’t believe the other parent should have any custodial or visitation rights. In these cases, each party will attempt to find evidence to prove their argument. Drug tests and substance abuse evaluations may be required, as well as psychological evaluations of the parties and children.
Parties in Virginia can utilize “informal discovery.” Using informal discovery rather than the formal discovery process can save parties money and make the process faster. Since informal discovery is done without court oversight, it requires some trust between the parties. If one party seems to be hiding information or informal discovery is otherwise not working, parties can proceed with formal discovery.
Requests made by a party during discovery must be complied with, unless there is a valid objection to the request. Objections are typically made if requests are overly broad, unduly burdensome, beyond the scope of the subject matter of the case, or designed to annoy, harass, or intimidate a party. Discovery can take place from the time a complaint is filed until 21 days before a trial. Parties typically have 21 days to respond to a discovery request.
Divorces are complex and it’s best to consult with an experienced family law attorney to help guide you through the process. Family law attorneys at General Counsel, P.C. are experienced in all aspects of divorce and can help you navigate the process. Call us today and see how we can help you.