Discovering Discovery for Divorce

Collecting Information to End a Marriage Can Have Both High Financial and Emotional Costs

by Michael Heath

Discovery is the fact-finding process of collecting information for settling a case. It is often a lengthy and arduous procedure that can be very expensive for divorcing couples and lead to  much bitterness. Although discovery is always necessary in a divorce case, the approaches employed between litigation and mediation are significantly different.

Discovery in a Litigated Divorce

It makes sense that a legal case requires information before there is a negotiated settlement or  a judge hands down a ruling. Each lawyer sends to the opposing attorney interrogatories, questions about finances and other details about the spouses’ lives. The litigants and their lawyers will go through the questionnaire, deciding what to answer and what not to respond to. Documents are exchanged and reviewed by lawyers and paralegals. Copies are made; if one side decides not to cooperate on a critical issue then filing new papers to the court may be required. When one or both sides become difficult, there is the likelihood of delays and additional fees. More anger can lead to increasing recalcitrant behavior. It is easy to see how the discovery proceedings are often the costliest of the whole case.

Discovery in a Mediated Case

In divorce mediation and collaborative divorce there is a spirit of cooperation. Instead of each litigant working against each other to get much of the same information, the couple cooperates in pooling together the required facts and figures. This contrasts with the contested divorce model where costs rise, and animosities are inflamed as each party attempts to get a “leg up” on the other side.

Expert Sharing in Mediated Divorce

Spouses often disagree over issues such as the value of a business or child custody. In litigation, each side hires their own experts to get answers. Fees for depositions, court appearances and detailed reports can be exorbitant. When a case is mediated the couple shares a mutually approved expert. Since the couple is working together to come to a solution, reporting tends to be more informal which also reduces the expense.

Less Is More

The differences in mediation and litigation discovery can be vast, which is just one reason why many couples should “discover” the alternatives to traditional divorce. The “less” discovery approach inherent in a mediated divorce leads to more money in the couple’s pockets and greater contentment.