Discovery, which is the way the plaintiff prepares for a case by requesting pertinent information from the defendant, makes known what was previously unknown. It is often time consuming and expensive, but it is impossible to go to trial without it.

Discovery affords an angry spouse many opportunities to frustrate the legitimate movement of a divorce. He or she ignores interrogatories, skips depositions, fails to comply with the production of documents. Noncompliance frustrates preparation for trial or settlement, causing delays that run up attorney fees.

In the face of discovery violations, courts bring sanctions, which is punishment for improper behavior. When problems development during discovery, the first step -- and one required in some jurisdictions -- is for one lawyer to contact the other and attempt to resolve the problem without sanctions. That failing, the next step is to file a motion to compel if the noncompliance persists. After a notice and hearing, the court may sanction the obstructing party.

As a general, noncompliance must be willful, not inadvertent or unintentional.

Courts consider factors in the selection of the appropriate sanction. The include the degree of willfulness or bad faith; the reason for noncompliance; the significance of the information in question; the impact of the violation, its duration and the number of violations; the effectiveness of the sanctions in bringing about the desired result; and the part, if any, opposing counsel may have played in the problem.

In imposing sanctions, courts seek a punishment that fits the crime. The most severe sanction is the denial to contest, generally by striking the pleading of the offending spouse and entering a default judgment. Less severe is denial of the right to present evidence. Courts also have the power to find a party in contempt. And finally courts may draw what is termed an "adverse inference" from the behavior of an uncooperative spouse and act accordingly in deciding a party’s credibility.

Some courts have considered discovery violations as a factor in distribution; other have not. A spouse’s noncompliance with discovery obligations or orders may be justification for awarding attorney fees to the victim spouse.

See Discovery.

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