What is Discovery?

“Discovery” is the process that Illinois divorce litigants use to obtain information, usually financial, from the opposing party.  Discovery is useful because it permits parties to negotiate settlement while feeling comfortable that they are making informed decisions.

There are several discovery tools that may be used in divorce cases.  The first is a financial disclosure statement.  Each party completes a financial disclosure statement form in which they list their income, expenses, assets, and liabilities.  It is a sworn affidavit so it is signed by the party before a notary public.  It is one of the most important financial documents in a divorce case and each party should take care when completing the form to ensure it is accurate.

Another tool is the Notice to Produce.  This document requires a party to tender documents to the opposing side.  These documents often include bank statements, credit card statements, retirement account statements, copies of loans, copies of property titles, and other documents evidencing assets and liabilities.  A Notice to Produce can request that other documents be produced as well.  The typical Notice to Produce requests documents for the past three years, but this time period may change depending on each case’s details.  Complying with a Notice to Produce can be time-consuming for a party because he or she often will need to contact their financial institutions for copies of statements.

A party may also serve Standard Matrimonial Interrogatories upon his or her spouse.  Interrogatories are questions.  The Illinois Supreme Court created Standard Matrimonial Interrogatories specifically for use in divorce cases and their purpose is to request information about the opposing party’s financial life.  A party is not limited to the questions in the Standard Matrimonial Interrogatories; more questions may be asked with the court’s permission.  There are other discovery tools, but those described here are most common.

Sometimes parties resist going through discovery.  A party who waives discovery assumes the risk that the other party hid or lied about the value of marital or non-marital property.  It is very difficult for a party to overturn a marital settlement agreement on the basis that they did not know the true value of the property divided in the agreement when they took little or no steps to ascertain that property’s value.

Whether or not you will waive discovery or the extent to which you will conduct discovery is something you should thoroughly discuss with your lawyer. Discovery can be lengthy and costly and the cost benefit analysis of each discovery tool should be carefully considered.

Leave a Reply