I am not a lawyer, but I understand that in most civil and criminal cases, both parties have the right of discovery. This means that both counsel for the plaintiff andd the defendent must give eachother any information they may have (relevant to the case) if asked. Does this apply to divorce? Is your lawyer bound to give YOUR personal information to opposing counsel?
This sounds plain weird!
Any lawyesr around?
Yep, discovery applies to divorce. A lot of times its pretty limited because the parties already pretty much know each other’s positions, but it’s available.
I should add, its not exactly right to say “both parties have the right of discovery” in a criminal case. There are things that a prosecutor must obtain warrants for, and things a prosecutor must disclose to a criminal defendant, but the rules are much different from civil discovery.
It’s perfectly normal, in a divorce case, for the court to order the spouses to make full disclosure to one another of their assets and income, isn’t it?
Not only normal, but you generally don’t even need a court order. Most of the relevant information has to be disclosed in discovery without having the court even get involved, unless the other party is willfully non-complying and you ask the court for a court order (and maybe sanctions).
Whoops. I see you’re in Ireland, UDS. I speak of course of Texas law.
OK, so both parties have access to everything…so why do they need lawyers then? If everything is open, why doesn’t the judge just commend both parties an issue a divorce? Why all the wangling?
Or do issues arise because one spouse’s lawyer is too dumb to ask for everything up front?
I mean,I don’t understand it…no secrets,open and shut case…right?
Some are. Those are “uncontested divorces”, when the parties say “I’ll take the truck, she wants the kids, sign this, Judge”. Both parties are pretty much in agreement.
When the parties don’t agree, however, it’s more complicated. Discovery is used in these “contested divorces” to determine what facts are agreed upon (we bought a house in 1995, I used $1800 of my money improving it) and which ones aren’t (that money was mine prior to the marriage, she’s a coke addict, I deny that I’ve been sleeping with the babysitter). You then tell the court what you think you’re entitled to in a “fair and equitable” divison of the property, taking all factors into account. Because the parties have managed their property both jointly and separately, they may not know what they entitled to under the law. They may even be in a situation where the law isn’t 100% clear as to who should take certain property and it could be argued either way.
Also, often you’re not just talking about division of property, you’re also talking about child custody and child support. Say the wife says “he made $1000 bucks a week the last three weeks, I want x amount to me in child support”; the husband comes back and says “sure, but my construction business has been booming and we’re in a drought. If business fall off or it rains a lot I won’t make nearly that much. I should pay less than x amount.” Remember, both parties may have access to all of the facts after discovery but the court has access to only those facts that the parties present to it, and neither one is usually telling the whole story. The parties are generally only presenting the facts in a light favorable to their case.