The Cost-effective Divorce: Avoiding Discovery Non-Compliance

It is not a secret that divorces have the negative connotation of costing a lot of money, particularly when lawyers are involved. However, the attorney’s fees can be minimal if the parties know how to manage their attorney’s fees. One way to manage your attorney’s fees is in regards to discovery.

Discovery, as described in my earlier post, is the process of exchanging documents and informations regarding the divorcing parties’ assets, to give both parties a full and complete disclosure of all marital property prior to entering into a settlement agreement. Discovery can be a very costly endeavor, however, there are ways to minimize the cost of discovery and still use the discovery process. It can be extremely useful and it is always in the divorcing parties’ best interest to know about each other’s assets.

One of the best ways to avoid spending a lot of attorney’s fees on discovery issues is by fully complying with all discovery requests, as soon as possible. Some attorneys feel that the discovery process will not be over and that they will fight until they have, literally, every single document in which they are seeking. The best defense to this strategy is to provide everything that they are requesting, and to do so as quickly as possible. If you provide the opposing party with all of the documents they are asking for, their attorneys have no reason to write letters, make phone calls and file motions requesting overdue discovery. If you don’t have the documents, order them from the entity as soon as possible and provide proof that the documents are forthcoming. Compliance is everything in discovery, and the faster, the more cost effective.

Another tip to remember about discovery compliance is that non-compliance can be very costly. In fact, 750 ILCS 5/508(b), which refers to attorney’s fees, basically explains that non-compliance with a discovery order is presumed to be “without compelling cause or justification” and the presumption can only be rebutted with “clear and convincing evidence”. That means that if you fail to follow an order regarding compliance with discovery you are given a much larger burden to show that you had cause for not complying, otherwise, you will be forced to pay your spouse’s attorney’s fees for coming in to court to enforce discovery.

The lesson to take away from this is that the best way to get through the discovery process and keep costs down is to fully comply, as soon as possible. Otherwise, you will be faced with litigation regarding obtaining the remaining documents and it will also delay finalizing your case.

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