Discovery is the legal procedure by which you are entitled to find our the facts and figures. Formal discovery will help you find out about your spouse’s income and assets and their answers have to be made under oath. Although discovery can be time consuming and expensive, discovery is very important, especially if you have limited knowledge of your and your spouse’s income and property.
My spouse handled all of the family finances. I know virtually nothing about her/his income, what we are worth etc. Will my lawyer and I learn these facts?
Yes, probably. The goal of the law is that you should know all of the facts and figures involved before you make a settlement decision and before the case goes to trial.
Your lawyer will learn the facts and figures through a procedure known as “discovery.” This allows your lawyer to have issued discovery subpoenas against employers, banks, etc. Your lawyer often will serve a request to your spouse for production of documents and standard interrogatories.
The extent of discovery will often depend on the nature of the case and whether one suspects the other spouse of hiding marital funds, attempting to minimize income, etc.
Can discovery facts and figures be done informally without the use of subpoenas and the like?
Yes. If the parties are cooperating, then informal (not court required) requests are made back and forth for the supplying of information and documents. Informal discovery is less expensive than formal discovery. In fact, in collaborative representation, the even the word discovery is not used. The focus is on disclosure of information needed in order allow a spouse to be comfortable that he or she has all the information reasonably needed.
What is the nature of the facts and figures sought by discovery?
- Verification of income.
- Information and documents so you can learn how money was spent through bank and credit card records.
- Business records.
- Documentation of financial statements submitted in connection with loan applications.
- Documentation regarding real estate, banking accounts, investments and the like.
- Retirement plan documents and information.
Who is included in the discovery plan process?
Discovery can be obtained by subpoena from anyone who knows relevant facts which are important to your case. Usually this is done via a records only subpoena.
Our case is very simple. Can we settle without discovery?
Yes. The simpler the case the less discovery is needed and sometimes the case is so simple that no discovery is needed.
What is a discovery subpoena?
A subpoena is issued by the clerk of the court. Alternatively, a subpoena can be issued by a lawyer on behalf of the court. Disobedience of a subpoena can lead to a finding of contempt and punishment for contempt by imprisonment.
What are written interrogatories?
Interrogatories are a list of written questions that are submitted to the other side and must be answered in writing by the other side under oath. In Illinois there are standard interrogatories in divorce cases. These standard interrogatories are published by the Illinois Supreme Court and the answers to the interrogatories should give relatively comprehensive information for the usual divorce case.
To prove my case I need documents that I do not have. Can I obtain these documents through discovery?
Yes. If your spouse has the documents (for example electronic access to canceled checks) your lawyer can serve a production demand on your spouse (your spouse’s attorney) and the documents must be produced within 30 days. Discovery can include documents both in a party’s possession and reasonably within his or her control. You should consult with your lawyer regarding the differences between these standards. If the documents are not in your spouse’s possession (or potentially reasonably in his or her control), but in the possession of a third party, a discovery subpoena can be issued for the production of the documents.
I remember hearing about depositions in notorious court proceedings. Are depositions taken in divorce cases?
Yes. Depositions are often taken in divorce proceedings. This is done when the combination of document production and interrogatories does not produce all the information required. A deposition is a face-to-face session where your lawyer asks questions of your spouse, or another person who is a potential witness. This is discovery because it is done before trial.
Depositions are usually taken in the lawyer’s office. In a deposition a lawyer asks questions and the witness, who is placed under oath, must answer the questions. A court reporter is present and transcribes the proceedings in shorthand. You must answer the questions unless your lawyer instructs you not to.
The side benefit of a deposition is that it may help to evaluate your spouse as a witness and it may be your first experience as a witness.