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The Discovery Process: An Obstacle in High-Conflict Divorces

by | Jul 24, 2020 | High-Conflict Divorce |

It can be a big challenge to get high-conflict couples to the finish line in a divorce, and it’s not always entirely the fault of the feuding couple. If both parties are determined to go to court, and they choose lawyers who pride themselves on their ability to fight in the courtroom, that’s probably the inevitable conclusion.

In some cases, it is necessary to take the fight to court, of course. But when high-conflict couples seek divorce, and they have lawyers who are positioned to snipe at each other, fighting might start at the very outset of the case, in what’s called the discovery process.

Discovery is the process by which the entirety of a couple’s assets and debts sought to be identified. Typically, for couples who are seeking as quick and fair a resolution as possibly, they willingly disclose what they have and what they owe in order to best divide up the marital estate. However, one or both parties might be holding “secret” assets, and discovery is the legal process by which those “secrets” are supposed to be sniffed out.

Having been in these kind of cases before, it can be challenging to navigate. If you’re a lawyer like me who sees the value in collaborative law, and who wants to get couples to resolution, it can be frustrating to see someone drawing out the discovery process.

I’ve seen discovery documents that approach 25 pages! While that might seem excessive, discovery’s also an element of a divorce that can’t be ignored. It has to be answered, and it increases both parties’ legal fees, even if only one party’s interested in fighting.

Sometimes, the fight is about something other than discovery, but discovery is just where it manifests. If you’re in a divorce with a high-conflict person and the fight has become draining, it can help to get to the heart of what the conflict’s really about. For high-conflict couples that go through collaborative divorce — and there is such a thing — the process can be utilized to determine what’s really important for each person to get out of the divorce and see if there’s a win-win that can be achieved from that.

Even if it’s not a collaborative divorce, sometimes a collaborative lawyer can use the skills and communication tools from those divorces into a high-conflict case. Of course, you don’t want to do anything to weaken your position in a courtroom battle, but if there’s a chance to avoid the courtroom, that often results in a less expensive divorce where it’s not left to a judge to make the final determination.

It should also go without saying, but if you’re in a divorce and there’s some asset or debt you haven’t disclosed, you need to let your lawyer know. Items that affect the outcome of a divorce do normally get found in discovery. If it looks like you have something to hide and it’s found out in the discovery process or through a forensic evaluation, for example, that will put you at a disadvantage in the courtroom, and it becomes likelier that the other side will want to pursue a courtroom battle. If you’re entirely upfront at the outset, it will help you move your case forward — even if the other party’s trying to throw a wrench in the works.

This article is by Deborah Jackson.