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Why discovery can be contentious during divorce

If you have heard horror stories about contentious divorces that take years to resolve, you may be lamenting the process of a contested divorce. Indeed, divorce litigation is not for the faint of heart because of how the emotions stemming from a failed marriage can make routine exercises appear vindictive even though they are not meant to be.  

The process of discovery can be one of those emotionally charged processes.

In a nutshell, discovery refers to the exercise of obtaining information and documents that may be used to support a party’s legal position, and to defend such a position. Depending on the issue at hand, discovery can be quite expansive (and expensive). Essentially, discovery can include anything, not privileged, that is reasonably calculated to lead to admissible evidence.

Even with such a wide scope, no one wants to be subjected to a “fishing expedition” where a party aimlessly looks for dirty laundry. However, because discovery is a common part of a contested divorce, this post will highlight a few examples of information that may be discovered.

Financial information – Divorcing parties are entitled to know each other’s earnings, whether they are w-2 employees or owners of small businesses. Financial information is especially important for the equitable division of the marital estate, and the value of businesses, retirement accounts (i.e. 401ks) and pensions are all considered part of the estate. Because of this, financial information is a common subject of discovery.

Communications with love interests – In Missouri, adultery is not a legal basis for divorce, but communications with love interests can be used for other purposes, such as establishing whether marital funds were used to support infidelity. In some situations, a party could be ordered to reimburse the marital estate for waste, or their share of the estate could be reduced.

Social media posts – Just about anything put on Facebook, Twitter or any other social media platform is considered to be discoverable information. This may also include statements or pictures posted on a page with privacy settings enacted. Suffice it to say, information posted through social media is for the public to know, and there may not be a reasonable expectation of privacy to be had in cyberspace.

If you have additional questions or concerns about discovery during a divorce, an experienced family law attorney can advise you.

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