Discovery is the process of obtaining and providing information in the family court proceeding.  The formal process of discovery includes interrogatories; requests for production of documents; and depositions.  Interrogatories are questions or demands for information that must be answered in writing.  Requests for production of documents involve providing copies of documents such as bank statements, asset verifications, tax returns and real estate records.  Depositions are oral proceedings in which the person answering questions is providing sworn testimony, and the questions and answers are placed on record by a court reporter. 

In many cases, it is not necessary to proceed with formal discovery, if there is enough cooperation between the parties and their attorneys.  In divorce cases, the parties are required by law to disclose relevant information so as not to defraud each other (or the court) in arriving at a fair and equitable settlement.  Consequently, it is often possible to streamline the exchange of information in a manner that is mutually beneficial and economical. 

Informal discovery typically happens by letter, or by meeting in person, or both.  The person providing information furnishes sufficient detail and supporting documentation in a manner that obviates sworn testimony at a deposition.  The person on the receiving end, in following up and requesting additional detail or additional documentation, often does not need a great deal of the information that would be part of the formal discovery process.  The exchange of information is tailored to the specific claims and relevant circumstances of the case, instead of the "fishing expedition" that the formal discovery process is characterized as by many lawyers and judges.

When a family court judge or referee presides over a Minnesota family court hearing, he or she may let the parties and attorneys know the court’s decision at the close of the hearing.  More often, however, the court will make known its decision later, after taking the matter under advisement.  When the court takes a matter under advisement, it may be necessary for the court and the court’s staff to research a legal issue, dig a little deeper into the file for information on the facts and circumstances, or just plain give the matter some more thought. 

The family courts operate under a general guideline that the court order will be issued within ninety (90) days of the hearing.  That time frame is extended when there are additional submissions after the hearing, such as a legal memorandum, or specific documents that the court has requested.  In those instances, the court must issue the order within 90 days of the final submission.

That said, it is more common for the court to issue an order within one to two weeks for motions involving one or two issues, and several weeks for motions involving several issues and/or complex legal matters. 

Why do some divorce and child custody cases settle out of court, and some cases have to go to trial?  There are many factors that determine whether a family law case will settle outside of court, the most important which involve the willingness of the parties to compromise, and the willingness of the attorneys for the parties to facilitate that compromise. 

Preparing for and proceeding with a family court trial is a long, expensive process.  If the parties are close to reaching an agreement, but are unable to arrive at the final stipulated terms, both parties are likely to spend more on the expense of going to trial than they would if they EACH accepted the other party’s terms. 

Conversely, if the parties are not close to reaching an agreement, there most likely is a principal issue that needs to be addressed by the family court.  Examples are whether there should be any spousal maintenance at all; whether an antenuptial agreement is void or not; or whether a third party is entitled to visitation with a minor child. 

In the first example, the AMOUNT of spousal maintenance might be resolved by compromise, but only if both parties presume that there will be spousal maintenance.  Otherwise, the dispute about whether there should be spousal maintenance at all may need to be decided by the court.  In the second example, how to apply the terms of an antenuptial agreement can be negotiated and compromised.  But if there is a fundamental question about whether the antenuptial agreement is even valid or not, the family court may need to render a decision.  In the third example, discussions about a visitation schedule cannot take place if there is disagreement about who is entitled to have the court-ordered right to have the subject minor child in their care in the first place.

One key advantage to a settlement out of court is the fact that the parties have the final say in the terms of their divorce or child custody dispute, rather than the court.  In all likelihood, the parties will be assenting to a conclusion that is not as favorable as their best possible result in court.  But it may be worth avoiding the risk of going to court and not getting the best possible result.