Many couples work through separation and divorce issues with counselors or mediation. However, you and your spouse may not find an agreement for the terms of your separation and divorce. In that case, your divorce attorneys go through a “Discovery” process where each attorney seeks to best represent their client’s interest by finding all the pertinent information to their client’s case. Let’s look at how to avoid discovery in divorce. 

What is Discovery?

If you and your spouse do not agree to terms for your divorce, you can wait until you agree or hire attorneys to represent you. If you’ve both hired attorneys to negotiate on your behalf, you cannot avoid discovery. Your attorneys will prepare as if they must appear in court. This preparation involves the discovery process. They will negotiate back and forth, trying to find a way to settle your divorce without going to court. 

The preparation attorneys make to defend your position involves a comprehensive look at what you own and your potential value as an earner, including:

  • Value of household property including furniture, jewelry, valuables
  • Banking and credit card information
  • Retirement funds or other accounts
  • Education and job skills
  • Work history and salaries
  • Income and assets 
  • Trust funds
  • Life insurance policies 
  • Real estate 
  • Vehicles, RV’s, boats, etc.

Discovery can also involve finding out any pertinent information related to the items you need to know about, including any information about:

  • Books
  • Documents
  • Tangible things
  • The identity and location of anyone who knows of any discoverable matter

Discovery usually also involves:

  • Knowledge of any experts or witnesses planned for court
  • Depositions: live spoken interviews
  • Written questions
  • Producing documents or things asked for
  • Permission to enter land or other property for inspection and other purposes
  • Physical examinations
  • Mental Examinations

You may still have a measure of privacy in some matters. In North Carolina, no attorney or court can compel you or your spouse to disclose any confidential communication made during your marriage. Many factors determine which information counts as confidential. It’s best to discuss any confidential matters with your attorney. 

Avoid Discovery By Settling Your Differences Outside of Court

Instead of asking your attorneys to negotiate, you can involve a third party to help establish the terms of your separation that ultimately transfer into the final divorce agreement. This process of working with a 3rd party to settle your differences is called “mediation.” Mediation utilizes a trained 3rd party to help you see each other’s point of view and work through disagreements. 

When you agree to all matters related to your separation and divorce, a court will grant a divorce, and there is no need for a discovery process. You and your spouse must agree on many issues, including:

  • Child custody
  • Child visitation
  • Alimony
  • Child support
  • Health insurance matters
  • Division of property and assets

Also, if your spouse refuses to engage in the divorce process and does not attend court, the divorce goes through without their input, called a default divorce. In this case, there is no need for the discovery process either. 

Keeping Assets Found In Discovery

When you file for divorce, you may lose your rights to revoke or change a trust or name new beneficiaries on life insurance. Even if you make changes, the court may order you to revise your accounts again as part of your divorce order. 

Also, you may not change the beneficiary on ERISA retirement accounts while separated unless your spouse agrees to the new designation and signs off. On the other hand, you may change the beneficiaries of an IRA account in your name.

If you own a revocable living trust with a spouse, it may include provisions that do not allow changes during separation and divorce. However, some revocable trusts will allow you to change the beneficiaries. Irrevocable trusts may include clauses specifying how a trustee must handle the assets during a separation or divorce. 

If you feel like your spouse is planning to discard, deplete, sell, or take other action that may affect property value before distribution, you can file an “Equitable Distribution” claim. An ED claim asks the court to restrain your spouse from discarding, depleting, selling, or taking action, which may affect the property’s value until you agree or the court rules. 

The court will not divide your property acquired by you or your spouse before your marriage. Also, if you acquire property by gift or inheritance, the court will not divide that either. Business and professional licenses are also separate property.

However, once the divorce is final, you or your ex-spouse can change anything that the court did not formally require as part of the divorce settlement. 

We Can Help

If you’re worried about the process of discovery and would like to avoid discovery in your divorce, contact us at Plekan Law. We work extensively with divorce issues along with estate planning questions. Talk to us and determine how best to protect your assets during the discovery process. We consider the best practices for you during separation, divorce, and afterward. It’s crucial to think about how you hold your assets at each stage of a divorce. Contact us today and find out how we can help you maximize your assets during this challenging time. 




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