Texas amended its discovery rules effective January 1, 2021, which will have a big impact on some parties filing for divorce on or after that date. Discovery is an essential component of divorce, especially when child custody and considerable assets are on the table.
Wondering how Texas’ new discovery rules might affect your divorce, what discovery involves, what is a discovery request or what is Discovery Level 2 in Texas divorce? We address those questions and more here.
What is discovery in a trial or divorce in Texas?
Discovery is a pre-trial process during which each side of a lawsuit has the opportunity to request information from the other side that is relevant to that lawsuit. Once a party makes a request for discovery, the party receiving the request for information must respond with answers and documents within a certain period of time, based on the type of case and discovery level (more on this below).
In Texas, requests for discovery can’t be submitted until required initial disclosures are due. Both parties in a divorce must submit initial disclosures no later than 30 days after an answer to the original petition for divorce was filed. (Technically, the parties have until the Monday after the 20th day from when they were served to file an answer, so the initial disclosures are generally due about 55 days after the filing of the lawsuit.)
When Texas modified its rules for discovery effective January 1, 2021, one of the biggest changes included a mandate that requires divorcing parties to submit these initial disclosures and two other types of disclosures prior to trial. Previously, either party would need to file a Request for Disclosure to receive this information, certain documents and access to property. The new required disclosures include:
- Initial disclosures: As noted above, these must be submitted no later than 30 days after the answer is filed. For initial disclosures, the parties must provide financial documents such as bank, credit card and retirement account statements, insurance policies, tax returns, recent pay stubs and other documents. BOTH parties must submit copies of these documents (something we view as a duplication of effort, thus unnecessary money spent from the marital estate for legal fees).
- Expert disclosures: Due 90 days (Level 1 Discovery plan) or 120 days (Level 2 Discovery plan) before the end of the discovery period, expert disclosures are written statements of expert witnesses (social workers, physicians, psychologists, tax and financial experts, etc.) providing opinions about the case.
- Pre-trial disclosures: Due 30 days prior to trial, pre-trial disclosures include lists (2) of witnesses who WILL be called and MAY be called, along with addresses and telephone numbers. The parties must also provide a list of documents that will be submitted as exhibits in the case along with a summary that explains how each exhibit will be used.
What information can I request during discovery in Texas?
The rules regarding discovery and what you can request are governed by Texas Rules of Civil Procedure discovery guidelines and other rules related to discovery, which are many. The type of information you can request during discovery in a Texas divorce includes:
- Request for production, inspection and/or entry to property. These requests involve access to tangible items, documents, property and other evidence pertaining to your case, including certain documents, electronic communications (emails, texts, voicemails, etc.), photos, personal property, real property and more.
- Interrogatories. The parties may ask each other questions related to information and documents related to discovery. These interrogatories are limited to a specific number of questions based on which level of discovery the case has been filed under. (More on level of discovery below.)
- Request for admissions. This type of request allows you to ask the other party to admit or deny the truth regarding certain matters relevant to the case or verify the validity of certain documents pertaining to the case.
- Request for depositions. You can request the other party or witnesses with knowledge about your divorce be interviewed and provide responses orally or in writing.
- Physical and mental examinations. If you have a compelling reason to do so, you can request the other party undergo a physical or mental examination. A judge will need to approve the request.
Do I need an attorney to file a motion for discovery?
If you are party to a divorce where discovery motions and responses are involved, we highly recommend you hire an attorney to guide you. Family law attorneys understand the intricacies involved with discovery and can help you avoid compromising your case.
Failing to provide the information requested, file an answer as to why you refuse to provide the information requested (it’s privileged or not relevant) or don’t provide information by the date it’s due (or ask for an extension), could put your case in jeopardy. Judges in the Texas Family Court don’t look kindly upon parties who don’t follow the rules, and failing to respond could result in the judge ruling in the other party’s favor by default.
While we’ll provide some insight on the following here, an experienced family law attorney is the best person to educate you and answer questions regarding:
- What is a discovery request? A request for information, documents or property (or access to them) pertaining to a lawsuit, such as a divorce.
- How to file a motion for discovery? Your attorney can help you request discovery, which is a written request submitted to the opposing side asking for information relevant to your case.
- How do I respond to a discovery request? Once you gather documents requested or prepare written answers to interrogatories, you or your attorney must provide the other party with copies (paper or digital) or access to requested items or property. Your attorney can explain how access to property is handled.
- Do I have to answer all questions or provide all documents the other party requests? If the information requested is relevant to the case and not considered privileged you will likely be required to provide it. Your attorney can explain what might be considered relevant and privileged.
- What’s a certificate of discovery? The Texas certificate of written discovery meaning pertains to a written document that is filed with the court to confirm items requested in discovery or access to them has been provided. A certificate of discovery isn’t required by the state but may be required in certain jurisdictions in Texas.
What does discovery level mean in Texas divorce?
There are three discovery level plans set forth for Texas divorce, which are based on whether or not a couple has children and the value of the marital estate or expected judgment. When a party files for divorce they must state which discovery level plan they believe their divorce falls under in the original petition for divorce. These include:
Level 1 Discovery: To qualify for Level 1 Discovery Texas parties filing for divorce must have no children and a marital estate or expected judgment no greater than $250,000.
Level 2 Discovery: To qualify for Level 2 Discovery Texas parties filing for divorce must have children and/or a marital estate or expected judgment greater than $250,000.
Level 3 Discovery: To qualify for Level 3 Discovery Texas parties may submit a motion or the court may order that the discovery plan and process be tailored to circumstances specific to the lawsuit.
What changed when Texas amended discovery rules effective January 1, 2021?
As noted above, one of the biggest changes reflected in the new Texas discovery rules is that certain disclosures are now required, along with when those disclosures must be submitted. Those changes pertain to Level 1 Discovery and Level 2 Discovery Texas cases only. Parties who qualify for a Level 3 Discovery plan are not affected by these changes.
The new rules include a few other restrictions as well. For parties on a Level 1 Discovery plan, some of the new rules of discovery include:
- Trials are limited to 8 hours per side (up to 12 hours based on good cause).
- Trials must be scheduled within 90 days after discovery phase concludes.
- Interrogatories are limited to 15 per side.
- Depositions are limited to a total of 20 hours per side.
- Mediation is now required (unless the parties agree otherwise), must be completed 60 days prior to trial and is limited to a half day. Plus, the cost of mediation can’t exceed twice the amount of filing fees, which could get tricky since you need to pay a mediator and attorney’s fees.
For parties on a Level 2 Discovery plan, some of the new rules of discovery include:
- Depositions are limited to a total of 50 hours per side.
- May request up to 6 additional hours of deposition time if more than two experts are involved.
Texas’ new rules of discovery may increase emotional and financial stress for some couples getting divorced
While the new discovery rules should help speed up some divorces, to be frank, most Texas family law attorneys aren’t happy about the changes. Especially the new expedited deadlines for disclosures and discovery, which could have a negative financial and emotional impact on some people going through divorce.
MORE STRESS: Getting through a divorce is difficult enough emotionally, but on top of that, Level 1 and Level 2 Discovery parties now have less than a month to pull together and provide nearly every financial document that is relevant to their marriage, children and divorce. Talk about stressful! It will be more important than ever to hire a law firm that excels at organization and has a solid team of paralegals and administrative staff to help keep your case on track.
MORE LEGAL FEES PAID UP FRONT: Some parties may also end up paying a whole lot more in legal fees up front—we estimate double—because law firms will spend more time organizing disclosure documents in the first few weeks of the case due to the expedited time frame. (Fees may balance out in the long term but Level 1 and Level 2 Discovery parties won’t have the luxury of paying some of their legal fees over a longer period of time, like they used to.)
OUTDATED INFORMATION: Since disclosure and discovery documents must now be submitted several weeks or even months earlier than in the past, some of the information provided will likely be out of date by the time the trial starts. A lot can change in three or six months (or more) when it comes to finances, the safety and wellbeing of children or the emotional state of a parent in recovery. Ask your attorney how he or she will overcome this, as the new rules are pretty fuzzy about the process for submitting revised, up-to-date information.
Have questions about divorce and the discovery process in Texas?
Our Tarrant County family law attorneys are here to help. From questions like, “What is a discovery request?” to “What level of discovery plan will I qualify for?”—we’ve got you covered. We also employ a large team of paralegals and support staff to help make sure your disclosures and discovery documents are collected and submitted according to schedule.
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