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 Illinois 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 depends 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, we don’t even use the word discovery. 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’s 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 process?
Lawyers can serve a subpoena from anyone who knows relevant facts. This is done via a records-only subpoena.
Our case is very simple. Can we settle without discovery?
Yes. Simpler cases require less discovery. Sometimes, in straight-forward cases require no discovery. Yet the risk remains yours if you don’t enter 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 lawyer can issue a subpoena on the client’s behalf. Disobedience with a subpoena can lead to a finding of contempt.
What are written interrogatories?
Illinois law provides for standardized interrogatories in divorce cases. These are written questions that the other side must answer under oath.
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.
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. 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, your lawyer can serve a discovery subpoena for the production of the documents.
I remember hearing about depositions in divorce cases. Are these routine?
Not really. But there is a right to take the deposition of your spouse. 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 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). Illinois law also provides for depositions by “remote electronic means” under Rule 206(h). In a deposition, a lawyer asks questions. After taking an oath, the witness must answer the questions [unless your lawyer objects and requests that you dont’ answer the question]. A court reporter transcribes the proceedings in shorthand.
