Texas Divorce 101: Discovery
In a divorce case, “discovery” is the process by which the parties and their attorneys gather evidence pertaining to the issues in the case in preparation for settlement, mediation or trial. If the parties want to attempt an informal settlement agreement, it is still important to conduct some discovery to help develop a just and fair settlement outside of court. Having a basic understanding of what discovery is and what it may look like in your case will help you approach this hurdle in a prepared and confident way.
Each divorce case in Texas must follow a discovery control plan and, depending on the amount of assets involved in your case, may fall under Level 1, 2 or 3. Tex. Fam. Code § 190.1. The discovery level that fits a case will dictate the parameters for discovery that the parties must follow. Most divorce cases fall under discovery level 2 so this article will focus on that. As such, a case that falls under Level 1 or 3 will have some differences from the rules explained here.
A party may serve the other party with any type of permissible discovery, for which the most common include (Tex. R. Civ. Pro. 192.1):
- Required Disclosures
- Request for Admission
- Request for Production of Documents
Each type of formal discovery listed above has its own prescribed format, deadline, and requirements outlined in the Family Code or the Texas Rules of Civil Procedure.
In the past, Rule 194 of the Texas Rules of Civil Procedure provided an optional form of discovery known as “Request for Disclosure”. There was no flexibility in this discovery, which only consisted of a specific list of requested information to be disclosed, exactly as it was outlined in the Rules. However, the Rules recently changed.
For all cases filed after January 1, 2021, the formerly optional “Request for Disclosure” shifted to “Required Disclosures” that are now mandatory. Tex. R. Civ. Pro. 194. Unless the parties agree or the court orders the parties to abate Required Disclosures, a party MUST, without awaiting a discovery request, provide to the other parties the information or material described below. Tex. R. Civ. Pro. 194.1.
While the law is clear that Required Disclosures are mandatory for all parties, they are actually only mandatory when triggered. The requirement to serve the Rule 194 Required Disclosures is triggered by the responding party in a divorce case timely filing an “Answer” after being served with a citation and petition for divorce. The Required Disclosures must be served by each party on the opposing party within 30 days after the respondent’s Answer is filed, unless a different time is set by the parties’ agreement or a court order. Tex. R. Civ. Pro. 194.2.
Since these must be completed and served fairly early-on in a divorce case, it is important to begin gathering the necessary information and documents as soon as you file or are served with a divorce suit. A party’s response must disclose the following specific information and documents:
- Correct names of the parties;
- Name, address, and telephone number of any potential parties;
- Legal theories and, in general, the factual bases of the responding party’s claims or defenses;
- The amount and any method of calculating economic damages;
- 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;
- A copy or a description by category and location of all documents, electronically stored information, and tangible things that the responding party has in its possession, custody, or control, and may use to support its claim or defenses unless the use would be solely for impeachment;
- Any indemnity and insuring agreements;
- Any settlement agreements;
- Witness statements;
- Medical records and bills that are reasonably related to the injuries or damages; and
- Name, address, and telephone number of any person who may be designated as a responsible third party.
Additionally, in cases for divorce, annulment, and suits to declare a marriage void, the parties must also include:
- All deed and lien info on any real property owned and all lease info on any real property leased;
- All statements for any pension plan, retirement plan, profit-sharing plan, employee benefit plan, and individual retirement plan;
- All statements or policies for each current life, casualty, liability, and health insurance policy; and
- All statements pertaining to any account at a financial institution, including banks, savings and loans institutions, credit unions, and brokerage firms.
Finally, in a divorce case that has child and/or spousal support at issue, the parties must also include:
- Information regarding all policies, statements, and the summary description of benefits for any medical and health insurance coverage that is or would be available for the child or the spouse;
- The party’s income tax returns for the previous two years or, if no return has been filed, the party’s W-2, Form 1099, and Schedule K-1 for such years; and
- The party’s two most recent payroll check stubs.
“Interrogatories” are questions that inquire about any matter within the scope of discovery that is relevant to the subject matter or issues involved in the divorce case. Tex. R. Civ. Pro. 197.1. A party may ask whether the other party makes a specific legal or factual contention, and may ask the responding party to state the legal theories and to describe in general the factual bases for the party’s claims or defenses. However, Interrogatories may not be used to require the responding party to marshal all of his or her available proof the party intends to offer at trial.
A requesting party is limited to asking 25 Interrogatories total, although these may be split up into smaller amounts in different sets of discovery. Tex. R. Civ. Pro. 190.3(b)(3). For example, the first set of discovery may include 20 Interrogatories, with 5 reserved for a possible second set of discovery to be served at a later time. Should the requesting party include more than 25 Interrogatories, the responding party is only required to answer the first 25 and may object to any additional Interrogatories.
After being served with Interrogatories, the responding party must serve a written response on the requesting party within 30 days. Tex. R. Civ. Pro. 197.2(a). The responses must include answers to the Interrogatories and may include objections and assertions of privilege, and also must be signed under oath by the responding party. Tex. R. Civ. Pro. 197.2(b) and (d).
Request for Admission
“Requests for Admission” are just that: written requests that ask the other party to admit or deny the truth of any matter that falls within the scope of discovery. Tex. R. Civ. Pro. 198.1. The Requests for Admission may include statements of opinions or of facts, or the genuineness of any documents served with the request or otherwise made available.
Similar to Interrogatories, the responding party must serve the requesting party with the response within 30 days after the requests were initially served. Tex. R. Civ. Pro. 198.2(a). It is also important to note that, if a response is not served within that time frame, the request is considered admitted by the court, so it is imperative that the response deadline is strictly met. Tex. R. Civ. Pro. 198.2(c).
In response to Requests for Admissions, a party may only “admit” or “deny” the statement that is presented. The responding party may object or assert a privilege, but he or she may only qualify an answer, or deny a request in part, when good faith requires it. Tex. R. Civ. Pro. 198.2(b). There is no limit to the number of Requests for Admission that may be served.
Request for Production of Documents
“Requests for Production” allow a party to require the other party to turn over or make available for inspection, copying, or photographing any documents or items that are within the scope of discovery. Tex. R. Civ. Pro. 196.1(a). The requests must specify the items or documents that must be produced, and each must be described with reasonable particularity. Tex. R. Civ. Pro. 196.1(b).
Responses to Requests for Production must be served on the requesting party within 30 days after the requests were initially served, just as with Interrogatories and Requests for Admissions. Tex. R. Civ. Pro. 196.2(a). The responses may include objections and assertions of privilege, and then must state one of the following (Tex. R. Civ. Pro. 196.1(b)):
- production, inspection, or other requested action will be permitted as requested;
- the requested items are being served on the requesting party with the response;
- production, inspection, or other requested action will take place at a specified time and place if the responding party is objecting to the time and place of production; or
- no items have been identified—after a diligent search—that are responsive to the request.
Subject to any objections included in the response, the responding party MUST produce any requested documents or items that are in his or her possession, custody or control at the time and place requested or the time and place stated in the response. Tex. R. Civ. Pro. 196.3(a). A responding party does not have to produce the originals of any requested documents; copies are allowed. Tex. R. Civ. Pro. 196.3(b). The only exception to this is if there are questions regarding the authenticity of a requested document, and then the original must be produced and can be kept by the requesting party while being inspected and/or copied. All documents must be delivered in an organized and labelled fashion, or in the way they are kept in the usual course of business. Tex. R. Civ. Pro. 196.3(c). There is no limit to the number of Requests for Production that may be served.
A “deposition” is when one party takes the sworn testimony of any person or entity by oral examination in front of any officer authorized by law to take depositions. The testimony, objections, and any other statements made during a deposition must be recorded in some way at the time they are made or given. Tex. R. Civ. Pro. 199.1(a). The recording may be done by stenographic means or videotape, although proper notice must be given as to the type of recording that will be made. As long as reasonable prior notice is given, a deposition may be taken by telephone or other electronic means, such as ZOOM, rather than in-person. Tex. R. Civ. Pro. 199.1(b).
Each side of a divorce case under a Level 2 discovery plan is allotted 50 hours total in oral depositions to examine and cross-examine parties on the opposing side, expert witnesses designated by the opposing side, and anybody subject to the opposing party’s control. Tex. R. Civ. Pro. 190.3(b)(2). The only exception to this amount of time under Level 2 is if one side of a case designates more than two expert witnesses, in which case the opposing side may have an additional six hours of total deposition time for each additional expert.
Unlike with the above types of discovery, there is not a 30-day deadline to respond to a deposition. Instead, the requesting party must serve the party or witness to be deposed with notice of intent to take an oral deposition at any time during the discovery period in a divorce case. Tex. R. Civ. Pro. 199.2(a). If a witness is not inclined to appear for an oral deposition after being served with the proper notice, then the requesting party may serve the witness with a subpoena requiring the witness’s appearance at the designated time and place. Tex. R. Civ. Pro. 199.3.
If you are facing a divorce or already have a suit pending, it is best to have an experienced family law attorney by your side to guide you through the discovery process. Call or email our offices today to see how we can help!