In a divorce, honesty is the key to a peaceful division of marital property. But when trust issues are involved—a rather common scenario for couples going through a breakup—how can you be sure that your share of the settlement is fair?
Consider the case of Deanna (not her real name). When she decided to divorce her cheating husband, she suspected that his infidelity wasn’t the only thing he’d kept from her. How had he paid for his trysts, for example? It was important for Deanna to determine whether or not he had income, bank accounts, or property he had not disclosed, so she forced a full discovery of her ex’s assets.
If you’re facing a divorce, should you do the same?
Discovery, in a nutshell
Discovery is part of every divorce: separating parties exchange information regarding their income, debt, property ownership, and more. It’s the first step toward ensuring that the divorcing couple’s assets are fairly divided.
The process can be as informal as each party voluntarily disclosing all such information. But can you count on your soon-to-be-ex to be truthful and forthcoming? When you suspect your spouse has not adhered to full disclosure, what’s known as an “interrogatory” may be in order. As the name indicates, the interrogatory is a list of questions, answered under oath, that address specific areas of interest or concern.
In truly acrimonious cases, a deposition may be necessary. A court reporter will record all sworn answers presented to the attorneys’ questions. The process may or may not involve witnesses and can last as little as an hour or stretch out for weeks. Most couples (and their lawyers) try to avoid taking discovery to this level.
“Heavy discovery could be useful at trial,” says attorney Alexis Moore, founder of Moore Justice, “but nine times out of 10, settlements occur because most clients can’t afford trial—lawyers don’t work for free, and trials cost lots of money.”
You don’t know what you don’t know
When working through the discovery, family law attorney Jessica Markham of Markham Law Firm takes her lead from the client. “If they feel they know where the assets are located and don’t want to turn over every stone, that’s fine with me,” she says. “If they aren’t sure what’s out there, then I conduct discovery with their input on how many years to back to look.”
Markham explains that discovery may be particularly appropriate for marriages with a culture of secrecy and mistrust, an attitude of “mine versus yours,” or a business with “not-so-neat” books. “In those cases,” says Markham, “full discovery often yields significant results.”
Is it worth the cost?
The discovery is conducted by your attorney, so it’s going to cost you. You must ask yourself: Can I afford to do a full discovery? Can I afford not to?
Before becoming an attorney, Moore conducted high-tech investigations to locate assets. “It’s costly,” she says of conducting a full discovery, “and it’s rare that one finds anything new as far as assets and information. The cost burden seldom outweighs the benefit.”
That said, the psychological benefits of full discovery can be as valuable as finding hidden assets. This was the case for Deanna, who was concerned that her soon-to-be-ex might have obtained property—a house, to be exact—behind her back. Her attorney advised that a discovery would reveal whether or not such a property existed, how it was obtained, and if it could be considered marital property.
Deanna paid her attorney’s going rate for the additional hours needed to complete the discovery. In the end, the process did reveal a secret property. But even in that case, the expense didn’t justify the return.
“The house was a gift to him. The deed was turned over to him for the price of $1 several years before we separated,” she says. “Because it was a gift, I was legally entitled to just half of what it gained in value since the transfer, which in this case was peanuts.”
Still, Deanna is glad she did the discovery, even if it cost her more than she financially gained. “I am not interested in that property—it’s not worth much anyway—but not knowing would have haunted me. The truth was worth the price to me, and now I can move on.”