Discovery is in Chantilly, Virginia. The Space Transportation System (STS) orbiter Discovery has an honored place at the Smithsonian’s Udvar-Hazy Center, right here in Virginia. It is a big, beautiful piece of flown space hardware, a veteran of 39 trips into the cold emptiness of outer space. An understandable source of pride for all Virginians, this Discovery is a far cry from the kind of discovery made in a Virginia divorce.
A Different Kind of Discovery
Our space shuttle Discovery is named in honor of the HMS Discovery, one of James Cook’s ships used to explore the Pacific Ocean in the 1770s. Both vessels were instruments to find out more information; that is exactly what discovery in a Virginia divorce does, too. The tools may be different, but the goal is the same: to explore brave new worlds.
Defining Discovery in Family Law
During the proceedings of a Virginia divorce, both sides seek information about the other side. This means your attorney is seeking to find out details about your wife, whose attorney is trying to discover information about you.
Discovery is three activities:
- Requests for production of documents
- Requests for admissions
Let’s sail away on a little voyage of discovery about discovery, one island at a time.
The Island of Misfit Interrogatories
Interrogatories are written questions you answer in written form under oath. Your wife’s attorney may ask very pointed questions, like, “When did you stop beating your wife, before or after sobering up?” Actually, most interrogatories include fishing expeditions but focus primarily on finances and children. The written questions are meant to find out if you are squirreling away secret bank accounts, how much you owe on your Dillard’s revolving credit card, and if you have a genuine interest in (and knowledge of) your own kids.
Typical interrogatories include questions like these:
- What is the current balance on all unsecured credit cards, what are your monthly payments, what are the account numbers, who are authorized users, and when was the account opened?
- What differences exist between you and your spouse regarding your children’s current educational placement, plans for postsecondary education, and financing their educations?
Neither question is suited to a quick answer. You may need to do some digging for facts on the first; you may need to proceed very cautiously with the second.
The Reef of Requests for Information
Once your wife’s attorney has your answers to interrogatories, the law office will ask for documents related to your answers. This is a popular movie trope: overwhelming the opposition with a documents dump, with the beleaguered star lawyer surveying 100 file boxes stuffed with papers.
In a real Virginia divorce, the requests for information will be much more direct:
- Please provide all documentation that supports your assertions of the first interrogatory regarding your Dillard’s revolving credit.
Your attorney may try to slow this process down by arguing — often futilely — that a particular request is an undue burden. You cannot use as an excuse that you are a disorganized slob; if you have the documents, you must produce them. That you had to actually clean up your study to find your banking records is not a valid argument.
The Archipelago of Admissions
Your wife’s attorney will attempt to box you in by getting you to state, for the record and ahead of a hearing, anything remotely negative about you. This Request for Admissions is meant to trap you, somewhat, into admitting wrongdoing or (worse) denying something that can be proven against you in the hearing.
Let your attorney decide the best response to a Request for Admissions. Often a simple affirmative answer will defuse what you thought was a monstrous disaster, and it will simply be one of many items in the long proceeding. A denial, though, is fodder for your wife’s attorney to draw you out, expose a possible lie, and impeach your other testimony.
The Fifth Amendment
Operating above all this discovery process is the treasured and mighty Fifth Amendment to the United States Constitution. We do not mean the U.S.S. Constitution, which is really a lovely ship and well worth a trip to Massachusetts to see, but rather the paper Constitution, whose Fifth Amendment prevents you from incriminating yourself in a legal proceeding.
Before you answer anything in discovery, either through an interrogatory, Request for Information, or Request for Admission, have your attorney decide if your answer should include a Fifth Amendment plea:
- I respectfully invoke my rights under the Fifth Amendment of the U.S. Constitution on the grounds that answering questions may incriminate me.
The Virginia State Bar Association (VSB) provides an informative look at the value of pleading the Fifth Amendment in civil cases, such as divorce. If, instead of pleading the Fifth, you deny something that you actually did, you waive your right to protect yourself. If, though, you answer written or oral questions with such a plea, your wife’s attorney has little recourse if no other evidence can be presented against you. Be aware, though, that your wife could do the same thing, avoiding your lawyer’s questions.
Pleading the Fifth Amendment should not be used casually to impede discovery. If you really did hit your wife and police records will prove it, you gain nothing by pleading against self-incrimination in the face of such third party evidence. An interrogatory that is vague and unanswerable, such as “Have you ever spent more than $100 without your wife knowing about it?” may best be answered with a plea.
Discover Our Family Law Attorneys for Men
For help navigating your way through discovery in a Virginia divorce, contact us at The Firm for Men, 757-383-9184. We’re located in the heart of Virginia Beach, a hop, skip, and a jump from Norfolk, Portsmouth, Chesapeake, Hampton, and Newport News.