Exchanging Information Prior to a Divorce and Waiving Discovery

In Illinois, so long as a divorce agreement is not unconscionable, a Judge will enter it and dissolve the marriage.  This gives parties a lot of liberty to come to an agreement to try and resolve their case.  This also means that if the parties fully agree, they do not need to complete discovery.  Discovery is the process of “discovering” what assets, liabilities and incomes the other party has, prior to a divorce, to ensure that all marital assets are accounted for.  Sometimes parties agree not to complete discovery, as they believe they have a full understanding of each other’s assets.  However, it is important to at least, informally, exchange financial information prior to dissolving a marriage, to ensure that everyone has been diligent in disclosing.

One way to informally exchange information is for both parties to complete notarized, signed Financial Affidavits.  This document takes an accounting of all income, assets and liabilities.  It is filled out by the party individually based upon their financial records, and sworn, under oath, by their signature.  There are severe penalties for lying on a disclosure statement, so most people are inclined to be truthful.  Reviewing the other person’s disclosure statement is a very good, informal way to review the other parties’ assets and liabilities. In fact, some Judges will refuse to finalize a divorce if a Financial Disclosure exchange didn’t happen, even if there is a full agreement.

It is important to be diligent in your efforts to obtain information from the other party prior to a divorce.  Otherwise, if there are assets that weren’t disclosed, parties can try to undo the divorce (vacate it) based upon fraud.  Parties who are divorcing typically don’t want to find that years later their divorce is vacated and that they are remarried, based upon a failure to disclose.  So, it is important to at least do a non-formal documents/disclosure exchange prior to a divorce to ensure everything goes smoothly.

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