What is Discovery in a Divorce or Custody Case in Virginia?

How do I get information about my spouse’s retirement, 401k, bank accounts, and other assets?

Discovery is a pre-trial procedure in which each party can obtain evidence from the other party through specific processes.  The specific rules are contained at Rules of Supreme Court of Virginia Part Four Pretrial Procedures, Depositions and Production at Trial Rule 4:1 through 4:12.

Some of the processes are interrogatories, requests for production of documents, requests for admissions, and depositions.  Answers to interrogatories and requests for production of documents and requests for admissions are all usually due within twenty-one days to twenty-four days depending on how they are served. Below is a comprehensive overview of what discovery is and how to respond in your divorce, custody or support case.

What are interrogatories?

Interrogatories are written questions that are answered under oath. In Virginia, interrogatories are limited to 30.  Also included in interrogatories is usually a Monthly Income and Expense Statement and Affidavit.  This affidavit details each party’s stated monthly income, expenses, and debts.  It is important to making determinations regarding spousal support, allocation of debt, and equitable distribution.

What is and how do I complete the Monthly Income and Expenses Affidavit?

The Monthly Income and Expenses Affidavit is important to your case. The affidavit should be your actual costs for these different categories or your best estimate of costs.  This affidavit will help the Court to determine spousal support or alimony and allocate the payment of marital bills.

With regards to your income, you need to provide your average gross pay per month.  You will need to review your paystubs and potentially your tax return to determine federal and state taxes and insurances, to calculate your monthly net income.

For each expense listed on the affidavit, at least one bill or receipt should be provided to your attorney to substantiate the cost of each and every expense listed. If you keep a budget, use Quicken or other accounting software, or keep a spreadsheet of expenses, use these to calculate your averages over time. You will need to be able to prove these expenses in Court if your case proceeds to a pendente lite hearing or trial.  Don’t exaggerate or underestimate your expenses; the Court may discount your other testimony or question whether your other discovery is truthful.

Here is an example for one category: If you purchased eyeglasses six months ago and don’t expect to get new glasses until next year, you would find your receipt or where that expense showed on your bank statement and divide it by twelve months to determine an estimated monthly amount.

Finally, your attorney may have you provide the Court with an updated income and expenses affidavit closer to trial if there have been significant changes in circumstances. If the parties agreed to sell a larger marital home during the separation or divorce; then, many of the expenses in the Household and Utilities category could change. For example, the mortgage, property taxes, homeowner’s insurance, and utilities might be significantly less, but maybe the repairs/maintenance on the home might be higher.

What are requests for production of documents?

These are documents that you are required to produce for inspection complete and fully legible copies of the following documents within your possession, custody or control.

How do I answer the requests for production of documents (RPDs)?

For every request, you need to provide complete documents in relation to that request. In Virginia, there is no limit to the number of requests and documents for the last three to five years are frequently requested. Depending on your case, the number of years of documents requested could be longer.

Talk to your attorney regarding how they prefer answers to requests for production of documents. You can save yourself substantial time and money if your answers are very organized. I prefer that statements be downloaded, if possible, and provided in electronic form and that they be organized and provided in electronic folders for each request. This will save you time and money when your counsel is reviewing them because they are already organized.  If you have counsel, request that the Requests for Production of Documents be provided to you in Word or similar word processing format so that you can type your answers directly which will save you time and money.

Here is an example of a request for production of documents and answer in blue, and questions for your attorney in red.

1(M)  Provide monthly or other periodic statements for all checking, savings, credit union and money market accounts, or CD’s, held in your name and/or your spouse’s name, individually or jointly with any other person, for the past 36 months. (excluding IRA, KEOGH and 401-K accounts):

RESPONSE:

Attached hereto are the following documents:

Bank of America combined checking, savings, credit card, and CD account statements May 2017 to June 2020

Capital One CD statements June 2019 to June 2020 (I don’t have 3 years because these accounts were started in June 2019)

Navy Federal credit card statements June 2018 to May 2020 (June 2020 is not available yet)

Here is another example of a request for production of documents with answers in blue.

14(M)  All monthly and annual credit card statements and receipts for all charge accounts listed in your name, individually or jointly with another, for the past 36 months.

RESPONSE:

Attached hereto are the following documents:

Bank of America credit card statements May 2017 to June 2020 (see statements provided in RPD 1)

Capital One credit card statements May 2018 to June 2020 (only two years were available online and I do not keep my credit card statements)

Navy Federal credit card statements June 2018 to May 2020 (June 2020 is not available yet)

For our firm, here is how we would like the documents provided to us.  You can upload in folders to Clio (our operating system) or you can provide to your attorney on CD or USB drive.  Each Request for Production of Documents (RPD) that has any documents should have its’ own numbered and labeled folder.  Within each RPD, each bank or account or similar should have its’ own folder.  For example, as below, if you bank with Navy Federal and the checking and savings account statements are combined in one statement; then, they should be in one folder. The Navy Federal Money Market accounts has separate statements and should be in their own folder.

If a combined statement includes bank and credit card information; then, you can refer to the other RPD.  For example, if Bank of America statement included checking, savings, credit card, and CD information; then, you would provide the statement in the RPD 1 as above and in RPD 14 refer to statements provided in RPD 1.

EXAMPLE:

  • C Smith Answers to Requests for Production of Documents
    • RPD 1 Bank Accounts
      • Bank of America Checking, Savings, and CD Accounts
        • Bank of America Statement May 2017.pdf
        • Bank of America Statement July 2017.pdf
        • Bank of America Statement August 2017.pdf
        • Bank of America Statement September 2017.pdf
        • Bank of America Statement October 2017.pdf
        • Bank of America Statement November 2017.pdf
  • Capital One CD’s
    • Capital One CD’s x4356 Statements June 2019 – June 2020.pdf
    • Capital One CD’s x2234 Statements January 2019– December 2020.pdf
  • Navy Federal Checking and Savings
    • Navy Federal Bank Statement June 2018.pdf
    • Navy Federal Bank Statement July 2018.pdf
    • Navy Federal Bank Statement August 2018.pdf
    • Navy Federal Bank Statement September 2018.pdf
    • Navy Federal Bank Statement October 2018.pdf
    • Navy Federal Bank Statement November 2018.pdf
    • Navy Federal Bank Statement December 2018.pdf
    • Navy Federal Bank Statement January 2019.pdf
    • Navy Federal Bank Statement February 2019.pdf
    • Navy Federal Bank Statement March 2019.pdf
  • Navy Federal Money Market accounts
    • Navy Federal MMA Statement June 2018.pdf
    • Navy Federal MMA Statement July 2018.pdf
    • Navy Federal MMA Statement August 2018.pdf
    • Navy Federal MMA Statement September 2018.pdf
    • Navy Federal MMA Statement October 2018.pdf
  • RPD 14 Credit Cards
    • Bank of America
      • Bank of America Credit Card Statement May 2017.pdf
      • Bank of America Credit Card Statement July 2017.pdf
      • Bank of America Credit Card Statement August 2017.pdf
      • Bank of America Credit Card Statement September 2017.pdf
      • Bank of America Credit Card Statement October 2017.pdf
      • Bank of America Credit Card Statement November 2017.pdf
  • Capital One
    • Visa Account x2392
    • Capital One Visa Credit Card Statement May 2018 – December 2018.pdf
    • Capital One Visa Credit Card Statement January 2019 – December 2019.pdf
    • Capital One Visa Credit Card Statement January 2020 – May 2020.pdf
  • Platinum Account x1234
  • Capital One Credit Card Statement May 2018 – December 2018.pdf
  • Capital One Credit Card Statement January 2019 – December 2019.pdf
  • Capital One Credit Card Statement January 2020 – May 2020.pdf
  • Navy Federal
    • Navy Federal Statement June 2018.pdf
    • Navy Federal Statement July 2018.pdf
    • Navy Federal Statement August 2018.pdf
    • Navy Federal Statement September 2018.pdf
    • Navy Federal Statement October 2018.pdf

For every document requested:

  • You need to provide every page of the complete statement or document even if the page is blank except for a page number.
  • You need to provide the front and back for any statements that are double sided.
  • Please do not provide copies of statements that have been written on (if you want to bring things to our attention like $5,000 cashed out of an account; then, make a separate note of the account, date, and page number of the transaction).
  • Please do not take a screenshot of your account online with your phone.
  • Do not change or alter any of these documents. Providing false statements may be a crime.
  • Please do not redact or white out any information. If redaction is necessary; then, I will redact the information.
  • You are responsible for producing these documents if they are within your care, custody, or control.  If you can log onto the website, call the bank or credit card company, contact your CPA, contact human resources, sign an authorization, or otherwise obtain it; then, you need to provide it in discovery.
  • Please answer every question. If the category or request is not applicable. Then, please state that it does not apply. For example, if you do not own a business and the request is for business documents; then, write, “Not applicable. No documents. I do not currently own a business as I sold my business six years ago.”  This will be helpful for your attorney who may reduce your answer to “Not applicable.”

Please provide documents organized by request and account. If documents are not organized; then, the attorney, paralegal, or staff will have to open every file or document and re-organize them. This will cost you additional money.  If the documents are provided in paper format; then, the attorney, paralegal, or staff will have to scan the documents and organize them. This will also cost you additional money.

Why do I have to provide these documents?

The documents provided will help your attorney, the other attorney, and the Court have the information that is needed to verify income, assets, expenses, liabilities, and debts. Providing this evidence allows your attorney to know the facts and information necessary to provide the best possible advice, provides the facts and evidence to the other party and their attorney knows, allows the attorney and the other attorney or party to evaluate your case, and allows the attorney to advise regarding negotiations, mediation, and possible settlement. These documents are the foundation of how much spousal and child support a party may be required by a court to pay.

What are requests for admissions?

These are statements that must be either admitted or denied under oath or a specific reason why the answering party cannot truthfully admit or deny the matter. In Virginia, each party is limited to 30 requests for admissions unless the court grants permission for additional requests.

How do I answer requests for admissions?

Each request for admission may be admitted or denied under the rules. If denied, a statement may be denied in whole or in part.  Sometimes you can neither admit or deny a request due to a lack of information.  If you can neither admit or deny a request; then, you should make a reasonable inquiry into whether you can admit or deny before making that statement. Finally, you may plead the Fifth Amendment. That means that you are asserting your right to refuse to answer a question on the grounds that you might incriminate yourself.

Example: Admit that you took your coworker, Ann Randall, on a date to Olive Garden on April 17, 2020.

Answer: Admitted that Ann Randall and I dined at Olive Garden on April 17, 2020.  Denied that Ann Randall is a coworker, or the dinner was a date.

Example: Admit that the other employees at your work received a ten percent increase in 2020.

Answer: Can neither admit nor deny as I do not have access to other employee’s personnel records.

Example: Admit that you committed adultery with John Smith.

Answer: Plead the Fifth.

Requests for admission may also be used to authenticate documents in advance of a hearing or trial. The documents that they are attempting to authenticate must be provided with the request.

Example: Admit that these Bank of America bank statements are true and accurate copies for the joint bank account.

Answer: Admitted.

What are subpoenas?

Subpoenas are orders requiring production of books, records, or other documents for inspection or compelling a person to testify or produce certain physical evidence.

What are depositions?

Depositions are out-of-court statements given under oath in a case.  They can be transcribed by a court reporter and/or recorded via audio-visual means or similar.  Depositions are normally oral (verbal) questions.

What happens if I don’t answer discovery?

You must answer discovery in order to use these documents or answers at trial. If the court does not have proof or evidence; then, you may not get the relief that you are requesting. Judges usually prefer proof and evidence to testimony as testimony can be quite self-serving.

If you don’t answer within the deadlines, fully and completely; then, the court can order relief such as:

  • An order that the issues for which discovery was not provided be established;
  • An order refusing to allow the disobedient party to support or oppose claims or prohibiting that person from introducing evidence;
  • An order striking out pleadings or parts of the pleadings or dismissing the action entirely or entering a default judgment against the other party;
  • An order treating any failure as contempt of court; and,
  • An order that the person not complying with discovery pay the other side’s reasonable expenses including attorney fees.

In other words, if you don’t provide discovery; then, you can lose your claims for a divorce, support, equitable distribution, custody, or parenting time.

Divorce and Family Law Attorneys in Fairfax and Manassas, VA

Answering discovery is a tedious and complicated process.  At NOVA Legal Professionals, we can help you navigate your divorce, custody and separation to minimize time, stress, and the costs associated with moving beyond your divorce. Contact one of our divorce attorneys in either our Fairfax or Manassas office to set up a consultation so we can discuss the facts of your case with you.