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Informal Discovery

Informal Discovery in a Texas 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. When a party wants to initiate the formal discovery process, he or she will give the other party Requests for Production and Inspection, Interrogatories or Request for Admissions. These different methods of obtaining formal discovery are governed by the Texas Rules of Civil Procedure.

In some cases, parties may wish to not exchange formal discovery or only exchange a few documents. There may be many reasons why, such as:

  • The costs of discovery
  • The nature of the relationship between the parties
  • The issues in the case
  • The length of the marriage

Other times, spouses may come to an attorney with a full agreement, so they don’t feel the need to exchange information with each other. Every case is different is different and unique. What is best for one couple may not be best for another.

If you have questions about what may be best for your situation, call (832) 781-0320 today to speak with one of our attorneys.

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What Is Informal Discovery?

When parties want to attempt an informal exchange of discovery we call this “Informal Discovery”. This means that parties don’t want to formally produce Requests for Production and Inspection, Interrogatories or Request for Admissions and be bound to comply with the Texas Rules of Civil Procedures.

When this happens, parties or their attorneys, simply agree in writing to exchange certain documentation. When parties or their attorneys enter into a written agreement, they prepare what is called a “Rule 11 Agreement.” A Rule 11 Agreement gets its name from Texas Rule of Civil Procedure 11 and says that if an agreement is in writing, signed and filed with the Court, it is an enforceable agreement between the parties in the case.  Attorneys enter into Rule 11 Agreements often to show the Court that an agreement outside of the courtroom has been reached.

The Rule 11 Agreement will state what documents the parties intend to exchange, the due date for the exchange, and then signatures of the attorneys or parties. You can think of this like a contract between the parties to perform a certain obligation.

What Is the Difference in Informal and Formal Discovery?

The main difference between informal and formal discovery is the weight behind formal discovery. Since formal discovery was created by the Texas Rules of Civil Procedure, there are far more significant penalties for a party who fails to comply with the formal discovery requests. Informal discovery does not have penalties, nor does it offer a party a remedy if it has failed to be complied with.

You’re probably thinking, “Why? Didn’t we sign a contract that says my spouse and I have to produce these documents by a certain date!” Yes, yes you did. However, the Court does not have an interest in compelling a party to comply with informal discovery. There are no penalties the Judge can tack against a party because the law does not provide them. Remember, the Judge is bound by what the law says. He or she cannot just make up their own rules – everything must be rooted in the law.

In formal discovery, however, the law provides all kinds of penalties – compelling the party to produce the documents, awarding attorney’s fees to a party trying to obtain the documents requested, awarding sanctions if the Court believes a party is playing games, and even holding a party in contempt of court (jail time or fees) for not complying with formal discovery.

What If My Spouse Doesn’t Comply With Informal Discovery?

Sometimes parties don’t play by the rules. We see this often in family law cases – where one party does what he or she is supposed to do, and the other spouse does not. It can be incredibly frustrating.

If you are in a situation in which you agreed to exchange informal discovery and your spouse is not complying, the easiest solution is to request the documentation through formal discovery. That means serving Request for Production and Inspection, Interrogatories, or Request for Admissions. This will give you the power to obtain the documents and then seek punishment of your spouse if he or she fails to provide the requested information.

This is when Informal Discovery can come into play. Rather than formally requesting the documents, maybe parties agree to provide information related to the certain information that they seek. If both parties are in agreement to exchange this information – they can! That is the beauty of Informal Discovery.

We oftentimes see parties entering into an agreement to exchange inventories and appraisements and supporting documentation. This means that both parties will prepare sworn inventories and appraisements of all of their assets and liabilities. Then for each asset and liability, they will provide the documentation to back-up what is listed on their inventory and appraisement.

How Do I Know if Informal Discovery Is for Me?

If you or your attorney believes that your spouse is hiding assets, informal discovery might not be a good idea. Your spouse will likely not comply with your requests and ultimately you will end up requesting formal discovery. It might be best to curb the cost of trying informal discovery and head straight to formal discovery.

Another reason informal discovery may not be an ideal option is if your estate is large and/or complicated. If you and your spouse own many types of assets, your attorney may want to see the big picture of your finances. You could also have a reimbursement claim and your attorney would like to trace assets. This requires a multitude of financial documentation, and it may be easier to just request the documents formally.

Your case is just that – your case. You control what the attorney does and does not do. If you want to exchange informal discovery or no discovery at all, you can. Know, however, that your attorney will probably not agree with your decision. Your attorney will likely make you sign a Waiver of Discovery acknowledging that he or she told you the risks of not obtaining discovery, you heard the risks, but you wish to proceed without your attorney’s advice.

If you have questions regarding informal or formal discovery, give our knowledgeable attorneys a call to discuss your unique situation.

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