Not every case is a simple one and it is very common for lawyers to have to conduct and/or respond to written discovery requests. Usually clients are confused by the process and what it involves so in this post I am going to lay out a basic explanation of the kinds of written discovery requests that typically get made in a Texas divorce case, the purpose of each, and how difficult and time-consuming each is to respond to. While there are forms of discovery other than written discovery (the most common being the deposition), this post will discuss only written discovery.
What Gives Attorneys the Right to Send Discovery?
The Texas Rules of Civil Procedure are what provides the authority for lawyers in Texas cases (including divorce and other family law cases) to conduct written discovery. In general, the purpose of written discovery is to gain information about the case in order to help you evaluate the case for settlement purposes as well as to prepare for trial. If you have done an effective job in obtaining discovery from the other side then you should be fully prepared to negotiate a settlement of the case if possible, or try the case if necessary.
Interrogatories are basically questions that you get to ask the other side. While each case has its own nuances and facts, there are basic interrogatories that most lawyers ask in every divorce case. These might include who the party knows that may testify in the case (basically, a potential witness list), what assets exist, what liabilities exist, what a party’s income is and information about their employment history, and details about that party’s contentions in the case. Depending on the issues in the case there are likely to be questions about other issues like child support, proposed conservatorship and visitation issues, spousal support, reimbursement, etc.
Frequently one side will not like some of the answers given by their spouse. I have often been asked by clients what we can do about some claim made by the other spouse, in other words how can we make them retract that statement. Generally, the answer is that we cannot do anything about it. They are allowed to take whatever position in the case they care to. Our job is to prove to the court that our position is the proper and correct position.
Depending on what is asked the Interrogatories can be fairly complicated and time-consuming to answer. Your attorney should help you in answering the questions and making any objections that are necessary and appropriate.
Request for Disclosure
These are somewhat similar in nature to Interrogatories, but they are very limited. The rule that allows for Requests for Disclosure limit the questions asked in the Request to only questions that are explicitly laid out in the rule. Neither party is entitled to ask additional questions or to modify the questions. They are basic questions that should get asked in every case, such as identity of individuals with knowledge of relevant facts, identity of any expert witnesses, and contentions about the various issues in the case.
Answering Requests for Disclosure is relatively straight forward and one of the simpler discovery documents to respond to. No objections are permitted so you and your lawyer simply answer the questions.
Request for Production
A Request for Production is a request to produce written records of various kinds. The person responding to the request is required to compile all the responsive documents and “produce” them. Depending on the issues in the case, the amount of records that might be at issue can be huge. Sometimes this is necessary because an issue in the case requires a great deal of documentation to evaluate and to prepare for trial. However, this is one of the more abused areas in the discovery process, as it is sometimes used simply to force the other side to do a lot of work and incur a lot of expense on the case.
Your lawyer should give you significant guidance in terms of what documents to compile and also what requests should be objected to, either entirely or in part. Responding to the Request for Production is one of the more time-consuming issues in discovery and can add significantly to your overall attorneys fees expense in the case.
Request for Admission
A Request for Admissions is essentially one party asking the other to answer a series of yes/no questions. The idea behind sending a Request for Admissions is to get the other side to admit to certain facts that will help you limit the issues and thus reduce the number of things that you are required to prove.
For example, if you were seeking a court finding that a piece of real estate was your separate property because it was given to you as a gift by your parents your lawyer might send a Request for Admission asking the other party to “admit or deny that the 101 Jackson Street property was given to husband by his parents.” Requests for Admission are not typically done in divorce cases but they sometimes are an effective tool and are used occasionally. Due to the yes/no nature of the Request for Admission they are not usually very time-consuming to answer.
Those are the key areas of written discovery. If you getting divorced and are fortunate enough to be certain that you have all the necessary information already readily available to you and your spouse, then discovery may not be necessary. However, if you are in the position of not knowing exactly what assets or liabilities are involved or information about any other issue in the case, then written discovery can be a very effective way to get information and documents to help you analyze the case.
As a Texas family law attorney for my entire career I have seen client after client be surprised by how the Texas Family Code requires that property be divided in Texas divorces. Most clients have heard that Texas is a community property state. While this is correct most people misunderstand what that means.
Texas Family Code Gives Court Broad Discretion in Property Division
Clients will say that they already know that since Texas is a community property state the property will be divided 50/50. The reality is that while Texas is a community property state, unlike many other community states the community property is not automatically divided evenly between the parties. The Family Code requires the trial court to divide the property in a “fair and just” manner. If you ask a qualified Austin family law attorney what this means they will tell you that a separate statute gives the court a list of factors that it can consider in making a disproportionate division (meaning that one side gets more than the other, such as 55/45).
The factors are many but the one that factors in most often is disparity of earning capacity. When one spouse makes significantly more than the other the court will often give the spouse with the lower earning capacity a larger share of the community property. The reasoning is that if the court were to make an equal division at the time of divorce it wouldn’t be equal for very long, due to one spouse greatly out earning the other spouse for a few years after the divorce.
Other factors courts can consider in dividing community property in a divorce include (but are not limited to) needs of the custodial parent, amount of separate property a spouse has, and fault.
Most Common Factor in Disproportionate Division: Income Disparity
A very common scenario that occurs in divorces is for the couple to consist of a primary breadwinner (frequently but not always the husband) and a spouse who works part time or not at all and is primarily responsible for taking care of young children. In this situation a court is likely to consider a disproportionate division in favor of the custodial parent. Part of the reasoning behind this is that being primarily responsible for raising children is likely to reduce one’s ability to advance their career and earn a high income.
Another Factor in Property Division: Amount of Separate Property
Another factor that courts can consider in deciding whether to make a disproportionate division is how much separate property a spouse has. Let’s use as an example a couple who got married at the time of marriage one of the spouses had a million dollars of separate property while the other spouse has no separate property. The marriage then created $200,000 of net community property for the court to divide at divorce. The court may very well consider making a disproportionate division in favor of the spouse who has no separate property.
Fault Can Also Play a Role
Lastly, the court can consider fault as a factor in making a disproportionate division. While fault does have an impact in some cases, it is far less frequently a significant factor in a disproportionate division than disparity of earning capacity or some of the other more commonly applied factors.
The main point here is that while Texas is a community property state that does not mean that the community property will be divided 50/50 in a divorce and there are a lot of variables that need to be considered. This is just another in the long list of reasons why everyone going through a divorce needs to be represented by a knowledgeable Austin family law attorney.
Please note that the clients and lawyers referenced in the video and transcript are purely hypothetical and not based on actual people. If you prefer reading to watching, please see the transcript below:
Selecting a lawyer who is going to effectively handle your divorce is extremely important, but most people have no idea how to pick the right lawyer for their case.
What you need is a divorce firm that specializes in divorce and that has a track record of satisfied and happy clients. A firm that focuses on what should be the main objective in every divorce case: getting the client a fair result as early in the process as possible.
Lets do a hypothetical comparison of two men who have decided to get divorced.
One, lets call him Bill, mentions to a co-worker that he and his wife have separated and that he’ll be getting divorced. His co-worker enthusiasticly tells him about his lawyer nephew who handles divorces. Bill, thinking his case will be simple and his spouse will agree, ends up hiring the nephew even though he is primarily criminal lawyer. Bill thinks to himself, ‘how hard can a divorce be, right?’ 12 months later, a frustrated Bill is still not close to being divorced.
Lets compare Bill’s situation to Steve’s. Steve had heard plenty of nightmare stories from his divorced friends and knew that he didn’t want to take any chances. He wanted an excellent divorce lawyer. Steve asked these same friends for recommendations, but none of them gave what you would describe as a “ringing endorsement” of their attorney.
So Steve went online looking for the right divorce lawyer for his case. He was looking for experience, a focus on family law, and a firm that had a track record of satisfied clients. When he found a firm that fit this description he scheduled an initial consultation to meet with the lawyer and see if his experience in person would match what he found online. When it did, he hired that firm. Even though his case involved children and some complex assets, four months later Steve was divorced and very satisfied with the result.
Why were these two outcomes so different? Let’s examine what happened.
Bill’s attorney, not having much experience in divorce cases, was never entirely sure how to proceed. He was frequently hesitant to push forward on the case because he was afraid that he might miss something. He spent a lot of time on issues that turned out to be not that important, while he neglected to focus on issues of extreme importance. He just never was confident that he was handling the case correctly, so he moved very slowly and indecisively.
In contrast, Steve’s attorney knew from experience exactly what needed to be done. He focused on the steps that needed to be taken to get a fair result for Steve as soon as possible. The steps required vary depending on the particulars of each case, but what is crucial here is that Steve’s attorney remained focused throughout the case on the primary overriding objective: get Steve a fair result as soon as possible.
These two men had very different experiences. One had a divorce case filled with frustration, delay, and unnecessary expense. The other experienced a smooth, efficient process handled by a true professional.
While divorce is always an emotionally difficult and painful situation, it shouldn’t be made more difficult by having an attorney who is not qualified or experienced enough to get you an excellent result in a reasonable amount of time.
If you’re interested in working with a divorce firm that knows exactly what it takes to get a fair result in the minimum time required, then feel free to call the Morgan Law Firm. We would be happy to schedule a consultation to discuss your situation in detail along with your options. Just fill out the form below and we will review it and get back to you to schedule a consultation. If you prefer, just call our office and you can schedule a consultation right away. We look forward to helping you in any way we can.
This video explains the basics of separate property in Texas. If you prefer, you can read the transcript below:
My name is Scott Morgan, I am a board certified family law attorney. In this video I am going to give an overview of separate property in Texas.
Texas is a community property state. In a Texas divorce case all property owned by either spouse is presumed to be community property. The court is required to divide the community property in a fair and just manner.
However, you can rebut this presumption if you can prove that an asset meets the definition of separate property. In that case the asset is confirmed as your separate property and not factored into the community property division. The court has no authority to award one parties separate property to the other spouse.
Under the right circumstances this can make a huge difference in the overall outcome of a property division.
So what is separate property? There are three types. First, certain types of personal injury recoveries are separate property, but this is quite rare. Second, gifts and inheritances are separate property. Finally, property that was owned by a spouse prior to marriage is that parties separate property.
A common complication is that separate property is not always easy to prove.
You must prove that an asset is your separate property by clear and convincing evidence. This evidentiary standard is significantly higher than the usual preponderance of evidence standard.
Additionally tracing the asset back to its origin can also be challenging.This is especially true with financial assets that have mutated and grown and moved into different accounts during the marriage.
The bottom line is that if you’re getting divorced and have significant assets that you believe might be separate property, you should get a very good family law attorney to help you prove those claims.
I hope this video has been helpful and informative. If you have any questions comments or suggestions for future videos please feel free to comment below.
This is a video by Scott Morgan, giving his three best tips on how to find the right divorce lawyer for your case. It originally appeared on his blog at austindivorcespecialist.com. If you would prefer, you can read the transcript below:
I’m Scott Morgan, founder of the Morgan Law Firm. I am a board certified Family Law attorney and I have practiced family law since 1994. In this video I am going to give you my three best tips for how to pick the right divorce lawyer for your case.
My first tip is to find out choose a lawyer who is experienced and focused on family law and divorce cases. Sometimes people hire attorneys for their divorce who have very little experience handling divorce cases, thinking that as long as the lawyer has trial experience of any kind that is enough. Nothing could be further from the truth. Family law is a very specialized area that is constantly changing. You really need someone whose focus is on family law.
Tip number two – find out what past clients have to say about the attorney. There is no substitute for getting actual feedback from someone who hired this same attorney and worked with him or her. If you were referred by someone you know who was a past client, all the better. Ask this person what it was like to be a client of that lawyer and, if they had it to do over again, would that hire the same lawyer and why or why not? This will give you the very closest thing to the actual experience of being this lawyer’s client before you decide who to hire.
Lastly, tip number three – After you meet with the lawyer for the first time ask yourself if you would be comfortable working with this attorney. No matter what the résumé says, no matter what the lawyer’s past clients say, if you just don’t feel comfortable with and confident in the attorney, you should keep looking.
Obviously, hiring the right divorce lawyer is a very important decision and one you want to get right the first time. Making the wrong decision and having to switch attorneys in the middle of a case is no fun. But if you follow these three simple tips you are much more likely to find the right attorney for your case.
If your case is in the Austin area feel free to give our office a call and schedule a consultation. We would be happy to see if we could assist you.