So, you and your spouse are getting divorced.  Now you must decide whether to attempt to resolve your divorce via a contested process in court, or through divorce mediation. One of the major components of your legal fees paid to the divorce lawyer is for fact finding, or what is known as Discovery.

What is “Discovery” or Fact Finding

In a legal proceeding, Discovery is the process by which litigants can investigate facts relevant to the case.  In Maryland, lawyers in divorce cases typically utilize the Court’s subpoena powers — enforceable through the Sheriff’s ability to arrest non-complying individuals — to investigate legally relevant facts.  These tools usually include Interrogatories (written questions that must be answered under oath), Requests for Production of Documents (requiring the opposing party to allow the inspection and copying of relevant documents), Depositions (recorded interviews given under oath), and Subpoenas Duces Tecum (a subpoena requiring a person or institution to appear and produce certain documents or evidence).  

Divorce attorneys will use these tools do ‘discover’ or find evidence or other information which can be used to advance the divorce proceeding and bring it to a resolution.   This can be costly, as your attorney must spend time gaining access to the information, and then, especially in the case of documents, spend hours reviewing the documents on your behalf.  In most cases, legal fees for Discovery amounts to up to 80% of all the divorce lawyer fees.

Is this level of Discovery — fact finding — necessary in most cases? 

For example, you may want a divorce because you think your spouse has committed adultery, but they deny it.  A good divorce lawyer could use these tools to investigate and build a case.  Perhaps a lawyer could find, buried in your spouse’s credit card statements, a charge at a jewelry store for a necklace purchased for his paramour.  Wouldn’t that make for a great bit of courtroom drama?

“Sir, your credit card statement indicates a charge of $622.82 at Jones’ Jewelery Emporium on June 17 of last year. What did you purchase at Jones’ Jewelery Emporium for $622.82? Was it a necklace for your lover?!"

Another example is for the review of financial records.  In some cases, one spouse may be untruthful about the assets he or she may have.  An attorney can subpoena records and ‘follow the paper trail’ to locate missing assets held by a scheming spouse.  Again, the scene of a divorce lawyer confronting your spouse over a hidden multi-million dollar offshore account is that of a courtroom drama — not one typically set in reality.  

In reality, in the vast majority of cases, each party knows (or can easily ascertain) the assets and values included in the martial estate (the sum of the assets owned by the parties that are ‘marital property’).  In most cases, the factual issues–who’s at fault for the divorce, the existence and value of certain assets– are not in such dispute as to warrant the cost, time, and headache of a contested divorce case.  After a divorce lawyer has subpoenaed every record, reviewed every bank statement, obtained expert opinions for the values of certain assets, they will of course send you an invoice for their time, often totalling $15,000 or more.

At Maryland Divorce Mediators, we take a different approach.  If you and your spouse can ‘agree to disagree’ — to agree to be open and forthcoming in the negotiation and resolution of your divorce — there is no need for the vast expense of the legal Discovery process.  

By utilizing a divorce mediator, you and your spouse can resolve these factual issues privately and in a matter of a few weeks, rather than allowing a lengthy and costly court process to play out.