Divorce often involves questions that cannot be answered just by looking at the initial court filings. How much does each spouse actually earn? What property and debt exist? How much is in a retirement account? Are there business interests, investments, or other assets that need to be valued? Are both spouses working with the same financial information?
Discovery is the process used to answer those questions.
During a Tennessee divorce, discovery allows each spouse to formally request relevant information from the other side and, in some cases, obtain records or testimony from third parties. Depending on the issues involved, that can include written questions, financial documents, depositions, requests for admission, and subpoenas.
Not every divorce requires the same amount of discovery. However, when property, income, support, or other facts are disputed, discovery can play an important role in determining what is actually at stake before the parties negotiate a settlement or present their case to the court.
Barnes & Fersten represents clients in Knoxville and throughout East Tennessee in contested and uncontested divorce cases. If you are just beginning the process, our guide to how a divorce starts in Tennessee explains what happens before discovery begins.
What Is Discovery in a Tennessee Divorce?
Discovery is the formal process through which the parties to a lawsuit obtain information relevant to the case. In a divorce, that often means gathering the financial and factual information needed to resolve issues involving property, debt, alimony, child support, or parenting disputes. Tennessee Rule of Civil Procedure 26 recognizes several methods of discovery, including depositions, written interrogatories, requests for documents, and requests for admission.
Discovery may be used to identify or verify information such as:
- Bank and investment accounts
- Income and employment
- Retirement benefits
- Real estate
- Marital debts
- Business interests
- Valuable personal property
- Expenses relevant to support
- Financial transfers
- Information relevant to parenting disputes
The purpose is not necessarily to prove that someone has done something wrong. Even when both spouses intend to be truthful, formal discovery can help make sure important decisions are based on complete information.
Does Every Tennessee Divorce Require Formal Discovery?
No. The amount of discovery needed depends on the circumstances of the divorce. Spouses with relatively straightforward finances who are exchanging information voluntarily may require much less formal discovery than spouses who disagree about income, property, business interests, support, or whether all assets have been disclosed.
For example, a couple may already have access to the same checking accounts, tax returns, mortgage statements, and retirement information. In another marriage, one spouse may have handled nearly all of the finances or operated a business that the other spouse knows little about.
Formal discovery may become particularly useful when a divorce involves:
- Significant or complicated assets
- Self-employment or business ownership
- Disputed income
- Separate-property claims
- Retirement accounts
- Suspected undisclosed assets
- Alimony disputes
- Contested child support
- Conflicting accounts of important facts
A contested Tennessee divorce does not necessarily result in extensive discovery, but unresolved factual or financial disagreements can make the process more important.
What Types of Discovery Can Be Used in a Divorce?
Tennessee provides several ways for spouses to obtain information during a divorce. Different discovery tools serve different purposes, and more than one may be used in the same case.
Interrogatories
Interrogatories are written questions sent to the other party. Under Tennessee Rule of Civil Procedure 33, each interrogatory generally must be answered separately and fully in writing under oath unless a proper objection is made.
In a divorce, interrogatories might ask a spouse to identify:
- Employers and sources of income
- Bank and investment accounts
- Real estate
- Retirement benefits
- Business ownership
- Debts
- Property transferred or sold
- People with information relevant to disputed issues
Because the answers are given under oath, they can become important if later evidence conflicts with what a spouse previously disclosed.
Requests for Production of Documents
Requests for production ask the other spouse to provide specific documents or categories of records.
Tennessee Rule of Civil Procedure 34 allows parties to request documents, tangible items, and electronically stored information. The request must identify what is being sought with reasonable particularity.
Common examples in divorce cases include:
- Tax returns
- Pay stubs
- Bank statements
- Credit card statements
- Retirement statements
- Investment records
- Mortgage and loan documents
- Business financial records
- Insurance documents
- Records showing ownership or value of significant property
These records can help establish the financial picture that will be used when discussing property division, support, or settlement.
Requests for Admission
Requests for admission ask the other party to admit or deny specific facts or the authenticity of documents.
They can be used to narrow the issues that actually remain disputed. For example, a party might be asked to admit that a particular account exists or that a document is authentic.
Requests for admission require particular attention because Tennessee Rule of Civil Procedure 36 provides that a matter can be deemed admitted if a timely answer or objection is not served.
Depositions
A deposition allows an attorney to question a party or witness under oath before trial. The testimony is generally recorded by a court reporter and can be used to obtain more detailed answers than written discovery alone may provide.
Depositions are not necessary in every divorce. They may become more useful when substantial facts are disputed, the finances require detailed explanation, a business owner needs to be questioned, or an attorney needs testimony from someone with information relevant to the case.
Subpoenas
Sometimes the necessary records are held by someone other than the spouse.
Tennessee Rule of Civil Procedure 45 permits subpoenas requiring a person or organization to produce designated records. Depending on the case, that could include records maintained by a financial institution, employer, business, or another third party. The court may quash or modify a subpoena that is unreasonable or oppressive.
What Documents Can Be Requested During Divorce Discovery?
A spouse may request documents that are relevant to the issues involved in the divorce and are within the permitted scope of discovery. Financial discovery can be broad because decisions involving property division, alimony, and child support may depend on understanding the parties’ income, assets, debts, and financial history.
Depending on the case, requested documents may include:
Income records: Paychecks, W-2s, 1099s, tax returns, bonuses, commissions, and other sources of compensation.
Banking and investments: Checking accounts, savings accounts, brokerage accounts, stocks, bonds, cryptocurrency records, and other investments.
Retirement: 401(k)s, pensions, IRAs, and other retirement benefits.
Debt: Credit cards, personal loans, mortgages, lines of credit, and other liabilities.
Businesses: Tax returns, profit-and-loss statements, balance sheets, payroll records, ownership documents, and business bank accounts.
Property: Real estate records, vehicle information, appraisals, and documents concerning valuable personal property.
Accurate financial information can be especially important in cases involving alimony or child support, where the parties may disagree about income or financial resources.
How Far Back Can Divorce Discovery Go?
There is no single Tennessee rule requiring every divorcing spouse to produce exactly three years, five years, or some other fixed period of financial records. How far back discovery goes depends on what information is relevant to the issues in the particular case.
A relatively straightforward divorce may require a different financial history than a case involving a long-standing business, separate-property claim, significant transfers, or questions about what happened to marital funds.
For example, older records might matter when determining whether money or property existed before the marriage, tracing funds through multiple accounts, or examining a transaction that occurred well before the divorce complaint was filed.
Tennessee Rule of Civil Procedure 26 permits discovery of relevant, nonprivileged information but also allows courts to limit discovery that is unreasonably duplicative, excessively expensive, or unduly burdensome in light of the case.
How Long Do You Have to Respond to Divorce Discovery in Tennessee?
Many written discovery requests carry a 30-day response period, but the deadline depends on the type of discovery and when it was served.
Under Tennessee Rule of Civil Procedure 33, answers or objections to interrogatories generally must be served within 30 days. A defendant generally has 45 days after service of the summons and complaint when interrogatories are served at that stage, unless the court provides otherwise.
Rule 34 provides a similar general deadline for requests for production.
Requests for admission also generally require a response within 30 days, subject to the rule’s provisions concerning defendants and any shorter or longer period allowed by the court. A failure to respond can result in the requested matter being treated as admitted.
For that reason, discovery paperwork should be addressed promptly rather than set aside until the deadline approaches.
Do You Have to Answer Every Discovery Request?
Receiving a discovery request does not automatically mean that every request must be answered exactly as written. A party may have grounds to object when a request seeks privileged information, falls outside the permissible scope of discovery, is excessively broad, or creates an undue burden under the circumstances.
However, that is different from simply refusing to respond.
Tennessee Rule of Civil Procedure 26 places limits on discovery and allows courts to restrict requests that are unreasonably cumulative, duplicative, burdensome, or expensive. Tennessee’s discovery rules also permit protective orders in appropriate circumstances.
An attorney can review the requests, determine what information should be produced, identify legitimate objections, and make sure the response satisfies the applicable rules.
Can Text Messages, Emails, or Social Media Be Requested in Divorce Discovery?
Potentially. Tennessee’s discovery rules expressly include electronically stored information within the types of material that may be discoverable when it is relevant and not privileged. That can include emails, electronic financial records, messages, photographs, and other digital information.
That does not mean one spouse automatically receives unrestricted access to everything the other spouse has ever done on a phone or computer.
Relevance still matters.
Electronic communications might become important if they relate to matters such as:
- Financial transactions
- Property or asset transfers
- Business activity
- Spending
- Communications concerning disputed property
- Relevant parenting issues
- Other facts directly connected to claims in the divorce
The scope of a particular request can be challenged when appropriate.
What Happens If Your Spouse Does Not Respond to Discovery?
A spouse generally cannot defeat discovery simply by ignoring legitimate requests. If required information is not provided, the requesting party may seek court involvement.
Tennessee Rule of Civil Procedure 37 permits a party to file a motion asking the court to compel discovery when, for example, the other party fails to answer interrogatories or properly respond to a request for inspection or production.
The process may involve:
- Identifying missing or incomplete responses
- Attempting to resolve the discovery dispute
- Filing a motion to compel when necessary
- Obtaining a court order requiring compliance
- Seeking appropriate sanctions if the order is disregarded
Tennessee’s rules provide courts with several potential remedies for discovery violations, including certain expenses, attorney fees, evidentiary consequences, and other sanctions depending on the circumstances.
Can Discovery Help Find Hidden Assets or Income?
Yes. One of the important functions of financial discovery is verifying whether the information disclosed by each spouse provides a complete picture of the marital finances.
For example, bank statements may show transfers to previously unidentified accounts. Tax returns may reveal investment income or business interests. Credit card records can show spending that requires further investigation. Business records may provide information about income, assets, expenses, or ownership that cannot be determined from a personal paycheck alone.
If records cannot be obtained directly from the spouse, subpoenas may sometimes be used to obtain relevant documents from third parties.
Discovery does not guarantee that every asset will immediately become apparent. However, using multiple financial records together can help attorneys identify discrepancies, trace transactions, and determine whether additional investigation is warranted.
What If You Do Not Have a Document the Other Side Requests?
Not having a requested document is different from refusing to produce one that you possess or control. Sometimes a record no longer exists, is maintained by a third party, cannot reasonably be accessed, or was never in the responding spouse’s possession in the first place.
The appropriate response depends on the circumstances.
For electronically stored information in particular, Rule 26 recognizes that some information may not be reasonably accessible because retrieving it would create an undue burden or cost. A court can address whether additional production should nevertheless be required and under what conditions.
Rather than ignoring a request because a document is difficult to locate, tell your attorney what you have, what you do not have, and where additional records might exist.
How Much Does Divorce Discovery Cost?
The cost of discovery depends largely on how much information must be gathered, reviewed, and disputed. A case involving a few accounts and cooperative document exchanges may require substantially less work than one involving business ownership, extensive financial records, depositions, subpoenas, or repeated disputes over missing information.
Costs may increase because of:
- Large volumes of documents
- Depositions
- Third-party subpoenas
- Business valuations
- Forensic accounting
- Electronic discovery
- Motions to compel
- Repeated incomplete responses
Clients can often reduce avoidable attorney time by organizing records carefully, responding to document requests early, and explaining which documents are missing instead of waiting until a deadline is near.
The goal is not necessarily to conduct the maximum amount of discovery possible. It is to obtain the information reasonably needed to understand and resolve the important issues in the case.
How Long Does Discovery Take in a Tennessee Divorce?
There is no universal timeline for completing discovery. Although an individual set of interrogatories or document requests may have a 30-day response deadline, the entire discovery process can last longer.
One response may reveal information that requires additional documents. A subpoena may need to be sent to a third party. A deposition may be scheduled. Financial professionals may need time to value a business or analyze records. Discovery disputes may also require court involvement.
As a result, the length of discovery often depends on:
- How many financial issues are disputed
- How quickly records are produced
- Whether third-party information is needed
- Whether depositions are necessary
- Whether experts are involved
- Whether either party challenges discovery requests
Discovery is only one stage of the larger divorce process. Our Knoxville divorce attorneys can explain how it fits into the overall timeline of your case.
What Happens After Discovery Is Complete?
Once the important information has been gathered, both sides should have a clearer picture of what needs to be resolved. Discovery may establish the value and location of assets, clarify income, identify debts, provide information relevant to support, and narrow factual disputes.
That information can significantly affect settlement discussions.
Many Tennessee divorces are resolved through negotiation or mediation rather than a final contested hearing. Discovery can help those discussions take place with a better understanding of the facts instead of relying on assumptions about what property exists or what someone earns.
If the spouses still cannot reach an agreement, the evidence obtained during discovery may help the attorneys prepare the unresolved issues for trial.
Talk to a Knoxville Divorce Lawyer About the Discovery Process
The outcome of a divorce can depend heavily on the information available when decisions are made. Before agreeing to divide property, accept a support arrangement, or resolve another disputed financial issue, it is important to understand what assets, debts, income, and other relevant facts are actually involved.
Barnes & Fersten represents clients throughout Knoxville and East Tennessee in divorce cases involving property division, alimony, child support, parenting disputes, business interests, and other contested issues. Our attorneys can determine what information may be needed in your case, prepare and respond to discovery requests, address incomplete disclosures, and use the information obtained to prepare for settlement negotiations, mediation, or court.
If you are preparing for divorce, responding to a case that has already been filed, or have questions about discovery requests you recently received, contact Barnes & Fersten’s Knoxville family law attorneys by calling 865-805-5703 or filling out our contact form to schedule a consultation.
This article provides general information about Tennessee law and is not legal advice for any particular case.
Associate Attorney
Dakota Vermillion is a Knoxville attorney practicing family law, including divorce and child custody, as well as DUI defense and criminal defense. Dakota brings experience from several areas of the legal system, including work as a family law judicial clerk, private family law attorney, police officer, and prosecutor. While attending Nashville School of Law, he worked as a law clerk in the Fourth Circuit Court of Davidson County, which primarily handles family law matters. He later practiced family law involving divorce and child custody matters before serving as an Assistant District Attorney with the Knox County District Attorney’s Office. Dakota’s background in family law, law enforcement, prosecution, and criminal defense gives him a broad perspective when representing clients facing significant legal matters.
