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Changes to Discovery Rules in Texas Divorce

Leslie Barrows
 | Published: 
February 26, 2021
 | Category: 
Divorce Litigation

Discovery in Texas Divorce Cases Involves the Exchange of Information

The first of the changes to discovery rules in Texas divorce lawsuits is about Level One discovery, which now applies to many more divorces and requires an expedited exchange of personal and financial information. The Texas rules of civil procedure list the rules for a discovery control plan in levels. There are Levels One, Two, and Three. Discovery can be written and can be oral testimony. Common discovery tools in Texas divorces include disclosures, interrogatories, requests for production, requests for admission, and depositions where the parties provide oral testimony recorded by audio and video. The recent changes to discovery rules in Texas Divorce became effective for new cases filed on or after January 1, 2021. For most intents and purposes, the changes in the rules are for the divorce lawyers to worry about, but as a client, it is helpful to be aware of the process.

Because every divorce is unique, the parties may enter an agreement or ask the Court to order different discovery terms and schedules. Know that in some divorces, the parties agree to what discovery exchanges they will perform, if any. So, if the parties come to their divorce lawyers and they already agree on settling finances and they agree on who gets what, there is no need to use discovery in their divorce. However, it is more common for divorces to involve discovery exchanges.

Read Our Article for More Information: What is the Divorce Process in Texas?

How Do Changes to Discovery Rules in Texas Affect Divorcing Clients

When getting a divorce in Texas, your divorce lawyer lets you know how the process works and when you will be expected to produce documents and information in the discovery process. At the Barrows Firm in Southlake, attorneys Leslie Barrows, and Amanda Roark as well as the paralegals and staff are available to help with questions along the way. For example, a discovery request from the other side might be looking for documents that are unavailable or in the other party’s possession. There might also be confusing questions, and it may be difficult to respond. Do not worry, at the end of the day the discovery process is a necessary part of divorce and it helps the attorneys, parties, and the Court understand what issues, assets, and people are involved in the divorce process.

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What is Level One Discovery, and What Changes Were Made to Discovery Rules and Limits?

Level One discovery now applies to divorces in which the parties claim the marital estate is worth less than a total amount of $250,000and this limit is an increase over the previous limit of $50,000. Note that Level One discovery does not apply to divorces involving children. In a Level One divorce, the discovery period starts when the initial disclosures are due,30 days after the Answer to the Petition for Divorce, and then the discovery period continues until 180 days after those initial disclosures are due. Not only does the window of time change, but the amount of time also allowed for depositions has changed. Now the parties may spend more than six hours taking depositions and they may now use up to 20 hours examining deposition witnesses. Note that the parties need not use the entire deposition time, and the more that can be accomplished and settled outside a deposition, the more resources are saved.

Level Two Changes to Discovery Rules in Texas Divorce

A Level Two divorce discovery plan applies now when the parties seeking a divorce have alleged owning community property and assets greater than $250,000.  Level Two discovery begins when the initial disclosures are due, just like in a Level One divorce, but they continue longer and can continue until 30 days before a scheduled trial date. In a Level Two divorce, each side may use up to 50 hours in a deposition, to examine and cross-examining parties on the opposing side, and their experts. Additionally, under the changes to discovery rules in Texas divorce, if one side discloses more than two experts, the other side may have an additional six hours of total deposition time for each additional expert. Level Two discovery also limits interrogatories to no more than 25 written interrogatories to be answered by the other side.

Disclosures After Changes to Divorce Discovery Rules

While it has been common to serve discovery requests along with petitions for divorce, and under the changes to discovery rules in family cases, discovery may not be served on the other party until after the initial disclosures are due. If certain information is subject to claims of privilege, that still applies. In Texas divorce, the parties may request and obtain discovery information and documents that are relevant and not privileged. A privileged communication must be something that may only be shared between two people, such as an attorney and their client’s communications are privileged and not subject to disclosure.  

The biggest change with the new rules is that disclosures are automatically required instead of requested. Copies of documents must be served with the response. Given the time limitations in complying with the new disclosure requirements, divorce lawyers are going to learn the best methods to obtain necessary information from clients to meet disclosure deadlines. Preparation and organization are important.

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Divorcing Parties Can Agree to Change their Discovery Level

While the legislative intent behind the changes to the discovery rules was a quicker, more efficient, and cost-effective process, not everyone will like these changes and there is a proper way to address issues. For example, the requirement to produce a large number of documents in such a short time at the beginning of the lawsuit might create a burden on one or both of the parties. Depending on the financial information and complexity of asset and property issues, the parties can agree to change their discovery level and they can also ask the Court to enter an order that cures any of the problems in the case because of the new rules and limitations they impose.

Who Pays for Discovery in Texas Divorce Cases?

The general rule in divorce in Texas is that each side pays their own attorneys fees and costs to produce and exchange discovery documents. There are situations when it is appropriate for one attorney to ask the Court to order the other party to contribute or pay attorneys fees and that is the subject of a different article. Generally, unless one of the parties has done something wrong or is intentionally causing problems in the process, the parties pay for their discovery costs. If a party to the divorce action is causing problems, the Court can hold them in contempt as well as order them to contribute to pay the fees of the other.

Questions About Changes to Discovery Rules in Texas Divorce, Call the Barrows Firm in Southlake at (817) 481-1583