Divorce has two purposes, the first purpose is to end the marriage, and the second purpose is to divide the marital assets and debts equitably. In order to equitably divide the assets and debts, the parties need to have a clear idea of the assets and debts. In divorce, this is done through the discovery process.
What is Discovery in a Divorce?
Discovery in a divorce is the process of disclosing information to the other side, such as financial information, real estate documents, tax returns, business records, and other information which may be used at a trial in the pending case. The discovery process helps to eliminate the fear of hidden assets and allows the parties to clearly see all assets and any debts. Discovery may take place formally during a case or informally.
Informal Discovery
Informal discovery tends to happen early in the divorce and is a voluntary release of information between the parties, such as attachments sent along with the mandatory financial affidavit. It may also happen when the parties negotiate a settlement through their divorce attorneys via the voluntary exchange of information and documents such as credit card statements, bank statements, pay stubs, and more. This gives a general view of the parties’ situation and is used in less complex cases to provide a complete picture of the parties’ finances. In some cases, these disclosures may satisfy the parties without the need to progress to formal discovery.
Formal Discovery
Formal discovery is a more extensive process and can include the following:
- Issuing Matrimonial Interrogatories;
- Issuing a Notice to Produce Documents;
- Depositions; and,
- Subpoenas.
What are Interrogatories?
Interrogatories are questions one party asks the other regarding their legal matter in writing. Generally, the party propounding the interrogatories can ask the other party up to thirty questions, including more detailed sub-questions. If you need to ask any additional questions, you can request permission from the court to ask more than thirty questions. If the court finds good cause, additional interrogatories may be allowed.
Interrogatories in Divorce Cases
However, in divorce cases, the Illinois Supreme Court has approved a series of standard matrimonial interrogatories to be utilized in divorce cases. These questions include asking for the other party’s address, the property owned, debts and obligations, or any witnesses the other party will use at trial. The matrimonial interrogatories contain more than thirty questions and subparts, but it is permissible and pre-approved, and thus all interrogatories and subparts must be answered.
If the non-standard interrogatories are used, and the questions are harassing in nature, or if there are more than thirty (30) non-standard interrogatories propounded, a party can file an objection within twenty-eight days of issuance. The court may then hear the interrogatories to determine if the questions asked must be responded to. If there are no objections, the receiving party needs to respond to the interrogatories within twenty-eight days.
What is the Notice to Produce?
A Notice to Produce is an official request from one party to the other for tangible things, like records, statements, documents, or objects. For example, commonly requested documents in divorces include deeds, titles, bank statements, loan statements, etc. These requests need to be for records that already exist. Someone cannot request that someone create a document, such as a list, in order to comply with a Notice to Produce request. The request also should be for documents within a reasonable time frame. For example, if a marriage is two years long, it may not be reasonable to ask for documents going back five years. A Notice to Produce will need an affidavit of compliance to show that it was completed to the best of the parties’ ability and in good faith.
Like the interrogatories, there are certain reasons to object to the requests within a Notice to Produce. For example, if the other party requests something that is harassing, from too broad a time frame, or which would be unduly burdensome to produce, for example, a party can object within twenty-eight days and ask that the court hear the objections and determine if the request is valid. Again, like the interrogatories, a party should respond within twenty-eight days to the notice to produce or they may waive the right to object.
Illinois Supreme Court Rules require that discovery be seasonably updated during the proceedings so that the most current values are utilized in the divorce case. As a result, discovery is ongoing until a final judgment is entered, even beyond the first requests being issued.
What Happens if the Other Party Does Not Respond Within Twenty-Eight Days?
If the other party does not respond nor object within the twenty-eight day timeframe, the other party can send a 201(k) letter to the other party or their attorney (if represented), and request a conference. Under Illinois Supreme Court Rule 201(k), the attorneys or litigants must resolve their discovery issues before bringing a motion to the court asking to compel responses to the discovery.
If the other party is still late, after at least two (2) correspondences and consultations with the other side or their attorney, then the requesting party can file a motion to compel and request that the court enter an order requiring that the party comply with the request. If the other party is still not complying, then the party can file a contempt petition or continue this process until sanctions are issued.
Failing to Comply With Discovery
Also, there is a danger of failing to comply with discovery. For example, if someone does not provide documents and refuses to go along with the process, the court may not allow them to use any documents they might have needed to defend themselves in a later trial. For example, suppose one spouse is saying that a house is marital property, and the contesting spouse believes it is non-marital property but refuses to provide anything stating that they are the only owner of the house and that the house was purchased before the marriage with non-marital funds, etc. In this situation, if the non-compliant party refuses to tender documents and then realizes they need them at trial later, the court might not allow that mitigating evidence to be used at trial because it was not provided during the discovery period.
What are Subpoenas?
Subpoenas are requests from one party to a third party for documents or statements related to the case. This can be important if one party fails to provide documentation on a known asset. The requesting party may then be able to contact the third party directly and request the documents via subpoena. For example, if someone banks at Chase but won’t provide three years of bank statements and canceled checks, the requesting party can issue a Subpoena directly to Chase Bank to obtain the same. This process can be expensive as many companies need a fee paid for this process and have a very particular requesting process. This can also upset the party whose documents are being subpoenaed. If a subpoena is issued and the other side requests access to whatever is received from the third party, access must be provided to the documents, or they must be made available for copying/inspection.
What are Depositions?
Depositions of parties or potential witnesses occur when attorneys are trying to determine what will be said at a trial or when they are trying to obtain answers to questions based upon the discovery they have reviewed. A deposition lasts up to three hours and may be extended it there is cause. There are two types of depositions, evidentiary and discovery. Discovery depositions allow the attorneys to “discover” additional information by asking questions of a witness or party, under oath, regarding issues relative to the case or discovery that has been received. Evidentiary depositions are to take testimony of a witness to be utilized at trial. Any testimony given during deposition is under oath. If the testimony given at an evidence deposition is different than what someone testifies to at trial, they may be impeached using the deposition transcript.
When Does the Discovery Process Take Place During a Divorce Case?
The discovery time frame in the divorce process depends on the court’s local rules. Sometimes, Judges will enter a trial order which states when the discovery period ends, but local rules usually will determine when it begins. For example, in Cook County, the discovery process can only start if the financial affidavit has been tendered by the issuing party, so the parties have a basic idea of what to ask for and what they should request in the process. But other courts may have different time frames, depending on their local rules.
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