Discovery is the legal procedure that entitles you to find out the facts and figures. Formal discovery helps you find out about your spouse’s income and assets. A spouse must answer certain questions under oath. While discovery can be time consuming and expensive, it’s important–especially if you have limited knowledge of 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.
You and your lawyer learn these facts and figures through a procedure known as “discovery.” There are five types of discovery:
- Interrogatories–a series of questions that require an answer under oath.
- Notices to Produce–requests for production of documents.
- Depositions of the parties.
- Subpoenas–these are served on third parties and request documents or require a person to answer a question while under oath.
- Requests to admit facts or documents.
In Illinois, you can have your lawyer issue 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 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 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 word discovery is not used. The collaborative lawyers focus on disclosure of information needed to allow a spouse to be comfortable that he or she has all the information reasonably needed. Even in traditional cases, the starting place is often the submission of financial affidavits so that the discovery process can be tailored to what is necessary.
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. Sometimes, the case is so straight-forward that no discovery is needed. Yet the risk is yours of not entering into discovery. A lawyer can explain these risks. A simple explanation is that if the information could reasonably be discovered at the time of the divorce, this is the time to enter into discovery to seek the required information.
What is a discovery subpoena?
A subpoena is issued by the court’s clerk or can be issued by a lawyer on the client’s behalf. Disobedience with a subpoena can lead to a finding of contempt.
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. The Illinois Supreme Court published these standard interrogatories.
Is there a limit to the number of interrogatories that can be requested?
Yes. Illinois law provides:
Except as provided in subparagraph (j) [Supreme Court approved interrogatories where subparts don’t count separately], a party shall not serve more than 30 interrogatories, including sub-parts, on any other party except upon agreement of the parties or leave of court granted upon a showing of good cause. A motion for leave of court to serve more than 30 interrogatories must be in writing and shall set forth the proposed interrogatories and the reasons establishing good cause for their use.
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. The Illinois Supreme Court published these standard interrogatories.
To prove my case, I need documents that I don’t have. Can I obtain these documents through discovery?
Yes. If your spouse has the documents (for example electronic access to checking accounts) your lawyer can serve a production demand on your spouse (your spouse’s attorney). The rules require document production 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 what this means. If the documents are not in your spouse’s possession (or not potentially reasonably in your spouse’s 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. But not in all divorce cases. Depositions are requested if the combination of document production and interrogatories does not produce 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.
Depositions are usually either taken in the lawyer’s office or in other cases there are rules that may allow for video depositions at Rule 206(g). There are also depositions by “remote electronic means” under Rule 206(h). In a deposition a lawyer asks questions. 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.
