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Discovery in a Texas Family Law or Divorce Case

Discovery is the fact finding and evidence gathering process of a case. This is when a party obtains information that supports their case and also obtains information the other side intends to use to enhance their case.

If you have watched any kind of Courtroom drama, you have probably seen someone put a piece of evidence on display that blindsides the person testifying. In the real world, this does not happen because we have discovery rules.

The discovery process is designed to prohibit “unfair surprise” during a trial. This means that a party cannot walk into the Courtroom with a piece of evidence that the other side has never seen before and use it. If it was asked for in discovery, it must be disclosed to the other side pursuant to the discovery’s guidelines.

If you have any questions about Discovery, call Hunt Law Firm at (832) 781-0320 to set up a consultation.

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What Information Can I Request?

Any information that is relevant to the case is able to be requested and discovered. Information is relevant as long as it is not privileged information and relates to the case at hand. For example, if you are going through a divorce, your spouse’s mom’s educational records are likely not going to be relevant. Information is “privileged” if it is sensitive information. Privileged information typically includes confidential health information that is protected under HIPPA.

If you feel that information, like health records are relevant to your case, a Judge must be persuaded to allow you to seek that information. Most healthcare entities won’t just provide a patients confidential medical records to an individual without a Court order or signed HIPPA authorization. 

How Do I Get This Information?

Discovery can be sought from a Party to the lawsuit or a Non-Party. There are different methods discovery is used to be obtained by and the method used depends on who a Party is seeking discovery from.

Information From the Other Party

There are certain methods of discovery that only a Party in a lawsuit can receive. That means that no one else outside of the lawsuit can receive or be required to answer these methods of discovery. These methods of discovery are standard and are often seen in family law cases.

  1. Request for Production and Inspection –a long list of documents requested from the other Party. The documents requested can range from bank statements, credit card statements, text messages, photos, school records, videos and recording, receipts, etc. 
  2. Interrogatories – questions the other Party wants you to answer about your case. These questions are open ended and require a written response that is signed under oath. 
  3. Request for Admissions – statements that are designed to either be admitted or denied. Request for Admissions are written, leading questions that steer a Party into a particular answer. For example, “Admit or Deny that the sky is blue.” Everyone…most everyone…would “Admit” this answer.

Information From a Party or Non-Party

There may also be instances when a Party or Non-Party (an individual not named in the lawsuit as a Party) receives a notice that their deposition is being requested. When this happens, a Party or Non-Party receives a subpoena. This subpoena tells them what date, time and location they are to show up to in order to have their deposition taken. 

  1. Oral Deposition – when a Party calls an individual or entity to testify, under oath, outside of the courtroom. The questioning is transcribed by a Court Reporter so a record can be made of the questioning that took place. It is oftentimes videoed/digitally recorded for playback in the Courtroom. Oral Depositions are a question-and-answer session conducted by an attorney. Depositions are taken to explore the issues in the case, narrow down issues, see what a Party or Non-Party would likely say in trial, or to intimidate the other side. Since depositions are taken under oath, if a party changes their position at trial or lies about something they said, the transcript of the deposition can be used against them in Court.

Information From a Non-Party

There may be times when a Non-Party has relevant information about the case. A Non-Party could be a family member, friend, the police, or even a financial institution. A Party can explore what a Non-Party knows and has information on as long as it is relevant to the case at hand. For example, a family member who witnessed a physical interaction between the two spouses would likely have relevant information about family violence during the divorce case.

A Non-Party could also have documents relevant to the case. Maybe a Party is not giving up relevant documents so the Non-Party, like a bank or financial institution, needs to be compelled to produce the documents. It is common to see spouses seek information from banking entities or credit card companies to ensure their spouse is not hiding money. A Party can request information from that Non-Party.

There are typically two ways to obtain discovery from a Non-Party.

  1. Subpoena Duces Tecum – the most common (and most familiar) tool to obtain documents from a Non-Party. A Subpoena Duces Tecum compels a person or entity to produce documents a Party is requesting. When a Non-Party receives a Subpoena Duces Tecum, the Non-Party must respond or face the penalty of contempt by the Court. There may be instances where a Non-Party does not comply because the information requested is sensitive (like CPS records or records protected by HIPPA) or because the Other Party is attempting to “quash” or cancel the subpoena. However, in most cases, there is usually not a good enough reason for the information to be irrelevant. Once a Non-Party complies with a subpoena, the Party who did not serve the subpoena is entitled to the information received by the Party from the Non-Party. 
  2. Deposition by Written Questions – written questions to a Non-Party that must be answered. A Deposition by Written Questions closely mirrors Interrogatories except that they are served on a Non-Party – whether they are an individual or an entity. The Deposition by Written Questions must be answered in front of a third-party, usually a notary or process server, and the answers must also be sworn under oath. The answers from the Non-Party must also be shared with both Parties in the case. 

What Information is Required to be Exchanged in Texas?

If you are finding yourself in a situation where you may need an attorney for a divorce, child support, or child custody issues, it is imperative to know that constant changes within the law. In the 2020 Session, the Texas Legislature passed a law that requires all parties in suit filed after January 1, 2021, to provide certain information and documents to the other parties. These include:

Initial Disclosures

Rule 194 of the Texas Rules of Civil Procedure required automatic disclosure of certain information. These were called Initial Disclosures. However, new cases filed as of September 1, 2023 no longer require Initial Disclosures. Instead each side can choose to send Request for Disclosures to the other side. Initial Disclosures were designed to limit the cost of family law matters but often made uncontested cases more costly. Initial Disclosures require that each party (in most family law cases) provide certain information to the other side.

The type of information that must be sent to opposing party and/or opposing counsel are the following:

  1. the correct names of the parties to the lawsuit; 
  2. the name, address, and telephone number of any potential parties; 
  3. the legal theories and, in general, the factual bases of the responding party’s claims or defenses (the responding party need not marshal all evidence that may be offered at trial);
  4.  the amount and any method of calculating economic damages; 
  5. the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person’s connection with the case; 
  6. any indemnity and insuring agreements described in Rule 192.3(f); 
  7. any settlement agreements described in Rule 192.3(g); 
  8. any witness statements described in Rule 192.3(h); 
  9. in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills; in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills obtained by the responding party by virtue of an authorization furnished by the requesting party; and 
  10. the name, address, and telephone number of any person who may be designated as a responsible third party.

Testifying Experts

A testifying expert is an expert who may be called to testify as an expert witness at trial.

Pre-Trial Disclosures

There is a new requirement for pretrial disclosures requires parties to present critical facts in the case thirty (30) days before trial. The requisite pretrial disclosures must include are the following:

  • The name, address and telephone number of each witness; and 
  • An identification of each document or other exhibits, including summaries of other evidence.

Additional Requests Based on the Type of Family Law Case

In a divorce case, each Party must provide the following documents for the last two years or since the date of marriage, whichever is less:

  • All statements pertaining to any account at a financial institution, including banks, savings and loans institutions, credit unions, and brokerage firms. 
  • All statements for any pension plan, retirement plan, profit-sharing plan, employee benefit plan, and individual retirement plan. This includes all pension, retirement, 401(k), SEP/IRA, or other employee benefit accounts.
  • All statements or polices for each current life, casualty, liability and health insurance policy. This includes, but is not limited to, declaration/benefits page and premium notices for all life, casualty, auto insurance, umbrella, liability, and health insurance.
  • All deed and lien information on any real property owned and all lease information on any real property leased. This includes documents related to real estate that you or your spouse owns including property owned prior to marriage and property that was inherited. This list also includes closing documents, deeds, mortgage statements.  You may need to reach out to the title company for this information.

In a child custody matter, divorce with children or if spousal support is at issue in a divorce, each Party must provide:

  • All policies, statements, and the summary of benefits for medical and health insurance that is or would be available for the children or the other spouse.
  • Two years of tax returns including IRS Forms W-2, 1099’s and Schedule K-1’s.
  • Two most recent pay stubs.

When Can I Send Discovery?

The “discovery period” is the time period during the case where parties can send and receive discovery. The discovery period begins thirty days from the date Initial Disclosures are due and ends thirty days before final trial. Any documents supplemented after the date the discovery period closes are typically not admissible at the final trial.

If you have any questions about Discovery or Initial Disclosures, please give our office a call to set up a consultation.

Discovery FAQs

How Long Do You Have to Turn Over Documents in the Texas Discovery Process?

In Texas, both spouses (usually done by their attorneys) must exchange required disclosures within thirty (30) days after filing the first answer. Example: If John Doe files an Original Petition for Divorce against Susan Doe on July 1, 2022 and Susan files her response/answer on July 10, 2022. Then the date that is applicable is July 10, 2022. Now both parties will have 30 days to exchange their mandatory and required disclosures by August 9, 2022. 

Are There Any Exemptions?

Yes, Each party in family law cases must follow the guideline for initial disclosures unless :

  • both parties agree to waive the initial disclosures
  • the Respondent is served and does not file an answer (thus it is a default)
  • your case is exempt from initial disclosures because it involves domestic violence, or
  • your case is exempt from initial disclosures under Texas Rules of Civil Procedure Rule 194.2(d)

What Happens if You Can’t Find All the Required Information and/or Documents?

If a party cannot locate all the information needed, the party still must provide a list of the documents that the person can locate, and a description of the efforts made to try and comply with the rules.

What Happens if You Ignore the Rules and Do Not Turn Over the Documents Required?

It is mandatory to provide discovery! Thus, the court can impose sanction on you, which can include ordering you to pay attorney fees to the other party and/or attorney or holding you in contempt of court.

Do I Have to Provide All These Documents if My Spouse and I Are Amicable?

If the Parties decide that they do not want to exchange this information, they can agree to abate the Initial Disclosures. This means that the Parties put the disclosures on pause to see if they can work out their agreement. When doing this, it is always best to file an Agreement to Abate the Initial Disclosures with the Court. That ensures that one Party does not go behind the other Party’s back to enforce the production of disclosures.

When agreeing to abate the Initial Disclosures, there should always be a clause that states at any point in time a Party can retract their agreement in order to exchange the required documents. 

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