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Discovery in Fairfax Custody and Divorce Cases

Fairfax CountyIf you are in the process of getting a divorce or fighting for custody of your children in Fairfax County, you may need information from the opposing party concerning his or her assets, living situation, sources of income, etc. This is where the discovery process comes in. The discovery process is an evidence-gathering opportunity for you to gain information that you would not otherwise have on your own. There are two types of discovery: (1) informal discovery, where parties and their attorneys voluntarily exchange documents and information, and (2) formal discovery, where litigants extract information from each other through written discovery requests, which carry deadlines for response and may be enforced by court action.

The discovery process may vary according to the court in which you file. In the Juvenile and Domestic Relations Court you must request permission from the court to conduct formal discovery at the status hearing or “First Return.” In Circuit Court, however, discovery is allowed by default and you do not need to ask the court’s permission before proceeding.

Discovery comes in many forms, including interrogatories, requests for production, requests for admissions, and depositions. To get the most out of the discovery process, you should tailor your discovery to the specific responses and information you need from the opposing party to build your case. For example, if you believe your spouse is hiding assets and/or has additional sources of income that are unknown to you, you should tailor your discovery requests to require the disclosure of accounts, assets with a value of over $200, jobs, investments, etc.

It is not uncommon for one party to object to discovery requests. Typical objections would be that the requests are unduly broad or overly burdensome in nature, or do not seek information relevant to the case. In other jurisdictions, such objections can quickly lead to a costly back and forth between opposing sides, as both parties expend time and money fighting over what is and is not required in discovery. In Fairfax, most of these fights are avoided by use of the “Model Discovery” provided by the Fairfax Bar Association Family Law Section. The Model Discovery consists of certain standardized or “model” interrogatories and requests for production which address much of the information that might be required in a custody or divorce case. So long as parties and their counsel “stick to the script” and tailor their discovery requests to follow the Model Discovery, they should be able to avoid messy and expensive discovery fights. The use of Model Discovery does not automatically preclude objections, but Fairfax courts will view Model Discovery requests favorably against most objections.

It is important to note that the point of Model Discovery in Fairfax County is not to displace the tailoring of case-specific discovery with generalized discovery, but to assist family law practitioners with casting a wide net in order to obtain relevant and necessary information from the opposing side.

Ultimately, of course, it is still up to the attorney or litigant to make his or her case, but a good attorney will take advantage of the discovery process (where warranted and allowed) in order to prepare the strongest case possible. Livesay & Myers, P.C. has a team of Fairfax family lawyers who are knowledgeable and skilled at taking advantage of the discovery process.  If you are facing a divorce or custody matter in Fairfax County, contact us today to schedule a consultation with one of our attorneys.

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