The Discovery Process During Divorce

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Divorces can be messy. From dividing assets, coming to a custody arrangement, and generally coming to terms with a new chapter in your, life divorce can have unexpected twists and turns. Depending on the situation, some soon to be ex-couples can come to an amicable settlement and end things on a positive note. However, when couples are considering divorce, they have likely had some marital strife and are not able to come to an amicable agreement. This is when attorneys, mediators, judges, and the court system come into play. When couples are unable to come to an agreement, an arbitrator or a judge will make a decision for them.

Divorce is handled differently in different states. States follow either a community property or equitable distribution model. Alabama is an equitable distribution state. This means that when dividing assets during a divorce, the property is to be divided “equitably,” or fairly. It is important to note that equitable does not have to mean equal. Dividing assets and property between a divorcing couples needs to be fair, not necessarily equal. The court determines what is fair on a case by case basis. In determining what the distribution and division of property should be, the discovery stage is crucial. Discovery is a time in which each side shares assets, liabilities, and other information with the other party so that the court can make the division. If property is not disclosed, or discovered, in this process, it can not be divided by the court. Parties are required to disclose their assets and not attempt to hide anything from the other party.

The discovery process follows the same general plan in Alabama divorce cases. The following are the steps of a divorce case in Alabama, including the discovery stage.

Complaint and Answer

The first step in a divorce is a complaint filed by the Plaintiff and his or her attorney. It is the initial step in the divorce process and gives notice that one party is seeking divorce from the other. The complaint must include certain information, such as the names of the parties, the county where each party resides, and the cause of the divorce. “Cause” refers to the jurisdictional grounds, or legal grounds, that permit couples to divorce. Divorce in Alabama can be both fault based and no-fault based.

The Defendant in a divorce case will be served with the complaint and has 30 days to respond to the allegations included in the complaint. The defendant will affirm, deny, or respond to each allegation and also file this or her own counterclaim. The counterclaim is the defendant’s opportunity to make allegations.

Discovery

Now that each party is on notice of the divorce, the discovery process begins. Each party can request information from the other party, schedule depositions to have an opportunity to ask questions, and subpoena information. The information being requested and/or asked in a deposition is needed so that the court can make an equitable distribution of assets. Questions about finances, assets, behavior history, and any other pertinent information may be asked during this process. Financial information is especially important when there are children shared by the spouses. The financial information is used to calculate child support payments, if necessary. Additionally, the information in the discovery process is also used to determine child custody and what the arrangement might be after the divorce is finalized.

The Hearing

Once the complaint and answer are filed, each party has conducted discovery, and any preliminary motions have been addressed, the settlement process can begin. If the parties can not come to a mutual agreement, there will be a court hearing scheduled. Both parties will present their case to the judge, including any witnesses or exhibits. The judge will then take all of the presented information and come to a final conclusion. A final judgment will be reached and the divorce finalized.

If you are thinking about filing for divorce, you need an experienced attorney to help guide you through this process. Entering into the divorce proceedings, and ultimately a new chapter of your life, can be stressful. The experienced family law attorneys at Massey, Statser & Nichols, PC  are here to take away some of that stress. We make sure to explain what is happening at every step of the process. While there are no guarantees of what will happen in any court case, our attorneys combine years of experience with a wealth of knowledge to present the best case possible under the circumstances. Contact us today for a consultation.

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