DICK & JANE “Divorce: Discovery – Part II” by Justin O’Dell

As we continue to look at Dick and Jane and the topic of divorce, recall that the process is underway and we have moved past the temporary hearing into the discovery phase. Our last article looked at discovery goals from Jane’s standpoint. For this month, we look at the process from Dick’s perspective.

No doubt, the first issue for Dick will be addressing the issue of his affair. We have analyzed Jane’s ability to question Dick about the affair and his use of privilege to limit the amount of discovery to be had. In response, Dick will probably throw out a few questions about extra-marital conduct toward Jane. It is surprising to many people to see what the other person may or may not reveal. In the end, the affair discussion may create emotion and grab attention, but ultimately conduct by either spouse is probably not going to have an overwhelming impact on the outcome, unless one party can establish a negative effect on the children or the diversion of marital money in furtherance of the misconduct. Still, the existence of the adultery and the desire to keep it out of the public realm can be a strong source of motivation to reach a settlement.

Dick’s primary concern is going to be on his company and the valuation issue. Since he is in control of the corporate information, he is going to have the advantage in working through the valuation process. It will be important that Dick provide thorough and responsive discovery to Jane’s attorney and expert. Although there is an overwhelming temptation to hide issues related to the company, they are usually exposed and more financially painful in the long term. Quite often, Dick can have his financial valuation expert work cooperatively with Jane’s financial valuation expert in order to educate and correct erroneous assumptions.

Lastly, Dick’s discovery of Jane will need to focus on her employability and future goals. As the Court approaches the issue of alimony, most Judges are going to expect that Jane has a plan for the future. If Jane is sitting back with an attitude that she does not need/expect/plan to get any form of employment, she is going to be penalized. Dick will need to discover Jane’s efforts to obtain employment, job prospects, interviews and the like. He can then use this information in response to her alimony case.

Next month, we will look at the mediation process and what happens at a Court ordered settlement conference with an expert mediator.