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Discovery Process and Negotiations

By March 24, 2012July 21st, 2023Divorce

After both parties have filed their initial pleadings, including financial statements, weeks or months are spent defining the issues and trying to resolve them. The goal is to gather all information necessary to present the matter to the court at the final trial.

Interrogatories (written questions) may be sent out requiring answers under oath from either party, which may, in part, request complete financial data or information about personal conduct. A Request for Production of Documents may also be made to either side, requesting a party provide documents reflecting assets, debts, etc. Interrogatories must be answered by you prior to sending them to your spouse. Documents must also be produced prior to requesting them from your spouse. Either attorney may subpoena the other party’s employment records, bank records, etc. The subpoena is a formal request for documents to a third party or entity to produce the requested records at a certain date and time. Depositions (oral questions before a Court Reporter) may be taken to obtain further information from the other spouse or other people that have the needed information. Appraisers, actuaries (if pensions are involved), accountants, doctors therapists or other professionals may be used. After the initial work has been completed, you and your attorney will set the goals you wish to obtain.

Court Settlement Conferences. While your case is pending, there usually is a series of settlement conferences with the Judge. The number and frequency depend upon the number and complexity of the issues in your case, as well as the particular Judge. Clients are required to attend settlement conferences, but they USUALLY do not see or speak with the Judge. The attorneys meet with the Judge, outlining the issues and their clients’ views. At these conferences, the Judge often recommends how particular issues could be resolved. These recommendations are not binding. Some Judges are more involved than others. Often the Judge’s view of the case can guide the settlement process. If the Judge has a particular view and it is not your view, it is difficult to get the other side to agree with your position. While settlement conferences may resolve the issues, it may become apparent from the settlement conferences that the case will have to be set for trial because the parties do not appear able to reach settlement.

Written Proposals. Settlement proposals may be made by either you or your spouse (through the attorneys). You will evaluate proposed terms of settlement in light of your own particular goals, as well as taking into consideration what the Judge might do if your case were before him or her at trial.

Clients are often anxious to have the case over as quickly as possible. Usually we can accommodate this, if you are willing to do all the compromising and give up things to which you are entitled. However, to get a fair and complete settlement, it may require your being willing to “hold out” or wait. Sometimes an offer is made before the attorneys could possibly know the nature of the family situation. If you want your attorney to advise you, you need to let the attorney gather the necessary information to do so.


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