The Discovery Process

discovery 1Discovery is a process by which the parties seek information from each other that is relevant to the case. This is a very broad standard, which means that a lot of personal information can be requested in the process, including bank statements, tax returns, and details related to someone’s affair. The point is for each side to have an idea of what the other side may present in a trial in order for each side to best prepare their case. Discovery helps to prevent one side from blindsiding the other during a trial with evidence or a witness that they have not had time to prepare an answer to.

Types of Discovery

There are various types of Discovery, some of which include interrogatories, request for production of documents, admissions, depositions, and subpoenas. We will explore each one in future blog posts.

How long does Discovery take?

Different discovery tools have set timeframes. For example, per Virginia Statute, a party has 21 days to respond to Interrogatories and Requests for Production of Documents beginning on the date they receive them from the opposing side. If the party does not respond within 21 days, then the requesting party must make one more effort to resolve the issue, which usually means sending a letter saying the responses are overdue and providing one last deadline. If the interrogatories are still ignored, then there are steps that the requesting party can take through the court to get the responses. Eventually, if someone does not cooperate, they can suffer various consequences such as having to pay sanctions, attorney’s fees, and even being barred by the court from presenting any evidence that the discovery asked about!

The process of Discovery can be very lengthy, which means it can significantly add to the cost of a case. However, often the process increases the chances that the case will settle outside of court. It provides each side a glimpse into the other’s case and essentially forces each party to “show their hand.” It’s an extremely important part of the case, even though it certainly isn’t much fun for either side. It is rarely advised to go forward with a trial without first going through discovery.

The Unemployed or Underemployed Parent

Posted January 12, 2018

 

In Virginia, both parents have a duty to support their children. However, something that happens fairly often in child support cases is that one parent does not work or is underemployed. In situations like this, the Court can often consider the parent’s earning potential rather than their actual income. This is called “imputing income.” The Court will calculate child support as though the parent was earning at their potential level, with the idea being that the parent cannot get out of their duty of support by purposely not working or working only part-time. At the very least, minimum wage will be imputed to a parent who does not have a valid reason for their situation.

As with everything related to children, imputing income to the parent must be in the child’s best interest. Sometimes there do exist special circumstances, such as a child who has special needs and therefore requires extra attention. Situations like this may justify a parent working only part time or not at all. A situation that would not justify unemployment however,  is when a parent is terminated from a job for cause. It is not uncommon for a judge to impute the income that the parent was earning before they were terminated, regardless of whether they have obtained a new position yet.

The bottom line is that the parent asking for income to be imputed has to demonstrate two things: the other parent’s earning potential and that imputing income would be in the child’s best interest.