Final Preparation for Your Divorce
It’s time to complete your “discovery” of the facts relevant to your case. This means getting or verifying the rest of the information you need for settling or trying your case from your spouse or third parties. Typically, you cast the net more widely than what you already know about so, by asking if there is something in a relevant category, such as bank accounts, and then the details if there are any. You don’t want to miss information critical to your evaluation of the case. Scrutinize all the information you gather, then filter it to find what you can use to persuade your spouse or the court.
This discovery really started back in Chapter Four; now is the last chance to make sure you have all the information you need. Get an update of the information from your spouse, which may have changed considerably since it was provided months ago.
Using Requests for Admissions (regarding the existence of certain facts that appear undisputed) may save the cost of proving facts at trial your spouse that ought to admit. Send these Requests, and you’ll either get the admissions or a basis for asking for attorney’s fees if you must take up the court’s time to prove facts your spouse that should have admitted.
Depositions of the experts selected by you and those selected by your spouse are usually taken a month or more before trial. You each want to know who the other’s experts are, and what they are going to say—under oath.
The deposition of an expert witness pins the expert down to an opinion that can’t be changed at trial. The expert has had a chance to review all the data and form an opinion. You are entitled to know what that opinion is if your spouse intends to use it against you in court. "Trial by ambush" has been discouraged for years in the belief that if both parties have access to the material facts in advance of trial, they will be more likely to settle the case. Perhaps no expert witnesses are required for your case; for example, the house may be listed for sale, and there may not be any pension plans.
Final discovery demands and requests should be sent at least sixty days prior to trial in most court systems. Ninety days before trial provides a cushion and enough time to do something based on the response. Since thirty days is usually allowed for a response, you’ll barely have time to get an order compelling compliance in the event the response is inadequate if the discovery request is sent only sixty days before trial.
Of course, you must complete your in-house preparation for trial and not limit yourself to merely getting the other side’s information. Your experts and appraisers should be wrapping up their work for your review and fine-tuning in view of facts you are discovering in this last hundred days. Your attorney may need your assistance with last-minute questions about documents or facts to be confirmed with an expert witness.
You must make the names of your experts and the subject matter of their opinions available to your spouse as required under court rules if you intend to use them at trial. Some of these professionals may serve as confidential consultants; you rely upon their opinions in making decisions, but will not use them in court. This information not only doesn’t have to be disclosed, it is protected by the attorney work-product privilege.
Your list of household furniture and furnishings should be completed. Include your proposed equal distribution of the marital/community items. If one of you is keeping the home, it’s usually obvious what stays with the house and what should go.
Completion of discovery seems to run right into production of evidence at trial. Bank records, pension account statements and employee earnings records are often subpoenaed to court well in advance of trial to eliminate the cost of having a witness appear and explain what is perfectly clear from reading a document.
You may wish to prepare special exhibits to graphically emphasize your important points. Now is the time to get started.