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Informal Discovery in Family Law

What is discovery? Initial pleadings and responses have been filed, what’s next? The next step in a family law matter would include discovery for information and documents. There are two different types of discovery: Formal and Informal.

Formal Discovery includes drafting and sending out Interrogatories, Request for Production of Documents, Depositions and Subpoena work. The use of formal discovery is standard and routine in different practice areas of law.

Interrogatories are questions or demands for information that are to be answered in writing. Requests for Production of Documents are composed of a list of items that the party is seeking this can include items such as tax return documents, home ownership documents, titles to vehicles and etc. Depositions are used to examine a person with relevant information to the case. Subpoenas are sent to various places and individuals for documents or information that they may have relevant to a matter.

 

Types of questions that Interrogatories include are questions such as: “What is your name?” or “How many children do you have?” Many individuals find these types of questions redundant in family law matters as the party sending them has had personal connections with the other party. The answering party’s first thought may be to say sarcastic remarks and or snide comments, however, there is a chance that this could be a document that is used as an exhibit or presented to the court if not filled out completely and properly. This may come off as a bad look in front of the judge if that is what a party does for the answers to discovery. In other cases, the judge may find it acceptable answers for redundancy or unnecessary questions.

Formal discovery is also seen as being a more costly than Informal Discovery. Formal discovery has deadlines that the document is due back to opposing counsel pursuant to the court rules and an attorney or party is able to file a motion is the answers are not received within a reasonable amount of time.

Informal Discovery consists of factual research that does not get obtained through Interrogatories, Requests for Production of Documents, Depositions and Subpoenas. Informal discovery is easily close tailored as well as it cuts down on attorney fees and costs for the discovery requests. The technique of informal discovery can help lower the cost, refrain opposing party or opposing counsel from retaliation, offer more confidentiality in the discovery process, and keep the aggravation factor low.

Keeping the cost low through informal discovery is normally easily achieved as it is not as time consuming as formal discovery requests.

Yes, some opposing parties and/or opposing counsels may retaliate. This retaliation consists of sending back the same type of formal discovery requests. Some opposing counsels may just cross out “Petitioner” or “Respondent” and make it opposite so that it can be sent back to the other party or other party’s counsel.

Confidentiality is something that clients want to ensure for many different reasons. Informal discovery is not governed by the court so items through informal discovery may never be filed with the court unlike some formal discovery documents. This helps keep some level of confidentiality as documents filed with the court become part of public record.

Lastly, avoiding the aggravation factor in an opposing party or opposing counsel is something sought for in amicable or peaceful cases. Many attorneys argue that formal discovery may also take an amicable case and turn it into one where peace is thrown out the window and the gloves come off. This is a situation that the parties and their attorneys like to avoid so that peace can be kept between the parties. Encouraging a peaceful current situation and peaceful future situation when possible is the best outcome the parties and their counsels can hope for.

Informal discovery can be achieved through asking opposing party or opposing counsel to provide certain items through a correspondence or email or through authorizations for bank and stock accounts, retirement plans and life insurance.

Informal discovery is helpful in family law matters where there are only a few issues at hand. For example, in a divorce case where the parties have agreed on everything except child support. The parties would be able to do a quick exchange of income documents instead of doing a full formal discovery request. However, if the other party or opposing counsel is not agreeable to informal discovery, formal discovery is the only other option a party has for discovery.

Formal discovery is very necessary in some matters. Informal discovery is not a one size fits all solution. Interrogatories and Requests for Production of Documents, Subpoenas and Depositions may all be necessary for a family law matter. Depositions are helpful in matters where there are expert witnesses, and the deposition of an expert witness can help prepare an attorney for cross-examination at trial.

A client’s counsel will be able to discuss and figure out with their client the best discovery course for them to take.

For more information, please see article “Discovery in Family Law Cases” by Gregg Herman on www.familylawyermagazine.com

The attorneys at Kathryn Wayne-Spindler & Associates are experienced attorneys who change with the times to meet the needs of their clients. Contact the Milford, Michigan law office of Kathryn Wayne-Spindler & Associates at 248-676-1000 for assistance.  Or contact our new location in Alexander City, Alabama at 800-809-9414. The attorneys of Kathryn Wayne-Spindler & Associates practice law throughout Southeastern Michigan primarily including Oakland, Wayne, Washtenaw, Genesee and Livingston counties. In Alabama Kathryn practices in primarily Lee, Tallapoosa, Macon, Chambers, Coosa and Elmore Counties.