Discovery in Florida Divorce: How Much is Too Much?
There comes a time in every Florida divorce case when the parties must engage in some level of discovery. Sometimes discovery begins when the case is filed, by serving discovery requests on a party along with the initial pleadings. Other times, discovery will happen soon after the initial filings in the case. Either way, discovery is likely to be an ongoing matter as the case progresses, and, as you might imagine, it can dramatically increase the cost of litigating your divorce.
What is Discovery in a Florida Divorce?
First, it helps to understand exactly what lawyers are talking about when they use the term “discovery.” It helps to think of the discovery process as the things that will occur to allow the parties to gather information about relevant subjects in preparation for litigating the divorce. Generally speaking, discovery occurs through the following legal mechanisms:
Interrogatories (Written questions sent to a party who will respond to the questions in writing).
Requests for Production (Written requests sent to a party—or other individual or entity—to produce certain paperwork for inspection, and in some occasions, allowing the inspection of physical places or items).
Depositions (An interview with a party or witness that takes place with a court reporter writing down the questions and responses; both parties and their attorneys are present, but no judge is involved).
Additionally, while not “discovery” in the legal sense of the word, I think it’s helpful from a client perspective to consider things that help to gather or analyze evidence as part of the discovery process. Think of things such as retaining experts, such as property appraisers and accountants, or hiring professionals to conduct mental or social evaluations. In some cases, a party may consider hiring the services of a private investigator, depending on the circumstances. It helps to keep all of this in mind if you are litigating a divorce, since, like most things in litigation, the choices you will be presented with on how to proceed will often come down to one thing: money.
It's unfortunate that how you pay for—or what you can afford to pay for—when it comes to case preparation in a divorce is a top consideration of the case, but it’s a reality that must be considered if you want to make it to the other side without going bankrupt in the process. Going down every path to search for potential evidence to use in your case is a tempting proposition, but rarely is it the case that you can do so without self-inflicting a tremendous amount of financial harm. How you should proceed tends to be more of a risk-reward analysis than a shotgun-blast approach.
Mandatory Disclosure: The Starting Point
Consider that Florida establishes a minimum requirement for discovery in divorce cases, which you can find at Florida Family Law Rule of Procedure 12.285. In principle, the rule functions to make the parties’ exchange of the most common evidence establishing the basis for splitting up the parties’ assets, assessing alimony, and assessing child support automatic. Mandatory disclosure will provide the documentation to determine a snapshot of the parties’ assets, debts, and earning potential through such items as paystubs, tax returns, bank and credit card statements, etc.
When is Additional Discovery Worth It
For many cases where the parties have little to no assets and debts in dispute, the mandatory disclosure provisions will often suffice to get the necessary numbers hashed out for purposes of evaluating equitable distribution, as well as issues relating to alimony and child support. Initial mandatory disclosure will also serve as a helpful starting point to determine the necessity or desirability of pursuing additional types of disclosure and information. For example, if the mandatory disclosure is accurate and reveals no retirement assets between the parties, it goes without saying that you would not look to hire an expert accountant to delve into any evaluation of the marital versus non-marital portions of accounts that don’t exist. But there are many occasions where additional evidence should be inspected or gathered. The key is deciding when it makes financial sense to pursue certain issues when building your case.
The rules in Florida provide a very wide latitude when it comes to seeking additional discovery. The general proposition is that you can seek almost anything, so long as it is oriented to lead to the discovery of other evidence that will be admissible at trial, the information you seek is not privileged, and you aren’t simply bombarding the other side with discovery requests for purposes of embarrassment, harassment, or to delay the case. This is, of course, a gross oversimplification of the complexities of law surrounding discovery, but it helps to drive home the point of just how much you can request. It’s rather easy to send large discovery requests to the other party, but once the party produces everything asked for, your lawyer is going to have to review a lot of documents, substantially driving up the cost of litigation.
Marriages with significant assets, business interests, investments—including retirements—will likely require some level of expanded discovery to properly litigate. And it would not be out of the question to start bringing in outside financial experts when valuations are in question, especially for purposes of trial if the parties cannot amicably come to a settlement in the case. But simply taking a shotgun approach to discovery and asking for everything possible when you have a good starting picture of the marital finances and incomes of the parties—or lack thereof—can be counterproductive.
I once had the occasion to hear someone express to me their thankfulness that some people are more than willing to spend ten thousand dollars litigating over a fifteen-hundred-dollar couch. As much as allowing my clients to litigate out of sheer principle is attractive to my bottom line, it really does not serve their interest to take an eighty-five-hundred-dollar loss merely for satisfaction's sake. Good advice starts with pointing out the obvious—what you want is not always in your best interest. The point to be made here is that pre-trial preparation and discovery in a divorce case can add up, getting extremely expensive very quickly.
For most people going through a divorce, the monetary outcome is a zero-sum game. Even when an overzealous approach to discovery leads to a slightly better result, you are no better off in the end if you spent more—perhaps orders of magnitude more—than you ultimately received. In other words, putting the financial screws to your soon-to-be ex-spouse is not worth burning all of the marital assets to the ground in the process.
The ideal approach is to seek enough discovery to be reasonably satisfied you have conducted your due diligence to ensure a complete picture of the information necessary to intelligently negotiate a fair settlement in the case, or present adequate evidence to the court to reach a fair result. This will often mean making decisions about what information will be important to pursue. In other words, if the cost of discovery yields a low or improbable likelihood of discovering something that will materially alter the case in your favor, careful consideration should be taken prior to moving forward.
This is not to say there are not times where you may have to commit to a decision and simply hope for the best. Sometimes it can be impossible to know whether what you are seeking has any reasonable chance of being useful, either to negotiate a settlement or present at trial in your case.
It’s much more likely to find surprises when a spouse has consistently maintained separate accounts during the marriage, or owns a business, where the internal books tend to obfuscate what belongs to the business, as opposed to what belongs to the individual or the other party, than when they are employed in a typical job with a large employer and the household finances have been reasonably transparent throughout the marriage. Nonetheless, discovery can be completed in waves to start peeling back the onion, so to speak, layer by layer, until some clarity of the finances is achieved.
Examples Other Than Financial Discovery
Additionally, other circumstances may exist where the measurement is not as simple as how much money you stand to gain versus how much you stand to spend. These situations require serious consideration and planning as the case moves forward.
Take, for example, depositions in divorces with children, where the parties have an intense dispute regarding child custody. The issues may stem from ongoing situations with co-parenting while the divorce is pending, the living environment of the child, and many others that will need to be established by evidence at trial, generally through the testimony of eyewitnesses with knowledge of the particular issues. If the opposing side discloses a number of witnesses on these issues, it is advisable to have some idea of what they plan to say at trial. This is a good time to bring those witnesses into a deposition and ask questions on the record to determine what they intend to say.
Aside from paying your lawyer, you might wonder what additional costs might be involved with a deposition. For starters, you will need to book a court reporter to be present at the deposition to make a record. Court reporter rates will vary, but it would not be uncommon to burn through a hundred dollars an hour, or more, for one to be present to make the record. Further, the upfront cost of the reporter’s appearance will generally be significantly less than producing an actual transcript of the deposition itself, which can run hundreds—in some extreme cases, thousands—to have prepared to use later at trial.
A few thousand dollars in court reports and depositions may be perfectly justified in a case that presents with a legitimate child custody dispute. On the other hand, it is important to maintain a realistic perspective about the likely outcome of such a dispute. I have seen cases where thousands of dollars have been thrown at petty child custody disputes, only to result in an outcome that appeared obvious at the inception of the case. In an ideal world, every witness would be deposed, and every deposition transcribed. But there can be more efficient ways to determine the purpose of a particular witness, and if it’s all but obvious they are simply there to inform the court of what a great guy or gal the other party is—evidence that itself may be inadmissible at trial—it may not be the end of the world to skip the depositions or transcripts. This is especially true when a litigant has a strict budget to work within, making it critical to spend the dollars where they are most likely to count.
Be Strategic
The bottom line is the collateral costs of litigation and discovery—the money you spend above and beyond attorney’s fees—can quickly accumulate if you’re not careful how you approach your case. It’s best to sit down and discuss this at the outset of your case with your lawyer so you can both be on the same page about how to proceed. Try to identify the things you need for your case that will be necessary to protect your interests, and when the cost of taking certain steps will likely outweigh the benefit to you in your case.