What will be “Discovered” During the Discovery Phase of Your NJ Divorce?

Now that we have completed the case management conference, our orders from the court regarding experts, appraisals, and exchange of documents will be put into action in what is perhaps the most significant phase of the divorce process: the discovery phase. The reasons that underlie the importance of the discovery period are two-fold: first, it provides us with the information that we need to negotiate a desirable settlement, and second, it presents the first real opportunity for reaching an equitable divorce agreement with the other side.

The primary determinant of the length and extent of the discovery process in your divorce is the Case Information Statement (CIS). Prior to any discovery activities, both you and your spouse will complete this document, which includes personal identifying information about you and your children, employment information, current and future income projections, and information related to your financial assets and liabilities. These may extend to real estate holdings, mortgages, bank accounts, pensions, 401K’s, retirement accounts, vehicles, auto leases or loans, credit card debt, and any other applicable financial interests. The CIS will also include an itemized list detailing your monthly budget, including expenses for food, shelter, utilities, insurance payments, taxes, transportation, entertainment, and other personal expenses. In essence, the CIS provides a complete illustration of your lifestyle and that of your spouse.

If the CIS is completed comprehensively by both parties, then the discovery phase of the divorce will require less extensive completion of each of the steps listed in more detail below. However, this is easier said than done. Perhaps you are not aware of all of the information because your spouse was generally responsible for such matters, or vice versa. These circumstances will necessitate the various components of the discovery period of a divorce in Rule 5:5-1, which encompasses interrogatories, depositions, notices to produce documents, and requests for admissions, each of which is described below:

  • Interrogatories: requests information from the other party regarding finances, assets, or anything pertinent to the resolution of the divorce proceedings
  • Notices to Produce Documents: requires documentation to support responses to interrogatories or answers contained within the Case Information Statement
  • Depositions: your spouse, an expert, or another interested party is placed under oath to answer questions posed by your attorney. Their written testimony can provide further clarification of divorce-related issues and can be used when negotiating a settlement of proceeding to trial.
  • Requests for admissions: request confirmation of the genuineness of statements made by the other party or the validity of documents produced

The other often critical component of the discovery phase of a divorce is the use of experts. So, when will an expert be useful to the discovery process? Experts can provide important input when addressing contentious issues such as child custody, alimony, child support, or division of assets. These may include: psychologists, forensic accountants, real estate appraisers, etc., who are tasked with providing an informed and objective evaluation of your family’s current circumstances.

Once the discovery requirements have been satisfied, through use of any or all of the aforementioned tools, your attorney will have the necessary information to begin discussions with the other side about an equitable divorce settlement. Of course, it is essential that you and your attorney remain in constant contact throughout the discovery process in order to agree upon priorities and non-negotiables, and to decide upon an effective strategy for achieving your goals. If, however, the parties cannot reach a settlement agreement during this period, your divorce can proceed through a number of different trajectories, including the Early Settlement Panel Program, Economic Mediation, or, of course, Trial. Next week, we will discuss the details of each of these potential avenues for resolution, as well as their respective values to you as you seek a favorable divorce outcome.