Understanding the Discovery Process During an Illinois Divorce

 Posted on October 23,2020 in Divorce

Every couple has an argument every now and again. Maybe you did not put the dishes away like you said you were going to do, or maybe your spouse forgot to pack the kids’ lunches like they were supposed to. Little things like that can pop up from time to time, but when those little problems keep coming up more often and lead to bigger and bigger fights, it may be time to consider ending the marriage. Reactions to the idea of a divorce can vary depending on the person, but you should have a pretty good grasp of the kind of personality your spouse has and how they are likely to react. 

For some people who have been in troubled or unhappy marriages, getting a divorce can seem like a breath of fresh air. However, that is not to say that those getting a divorce have it easy. In many cases, these couples end up going through difficult, contested divorces that can put them at the mercy of the court system and each other. Any divorce can become complicated fairly easily, which is why hiring a professional is nearly always recommended. If you are dealing with a contested divorce, enlisting the help of an Illinois divorce lawyer who has experience dealing with contested and complex divorce cases could benefit you greatly.

Leading Up to the Discovery Process

In today’s world, the default for most divorce cases is to utilize some form of alternative dispute resolution, such as mediation or collaborative law to complete the divorce, rather than litigating the case in the courtroom. Most of the time, litigated divorces are only used when there are special circumstances involved that would make another method inappropriate, such as if domestic violence was present in the household.

The Illinois Marriage and Dissolution of Marriage Act (IMDMA) states that certain issues must be taken care of and settled before the divorce can be finalized. These issues include things like the division of marital property, the division of marital debt, and whether one spouse will pay spousal support to the other, and if so, how much and for how long. If the couple has children, they will also have to determine how parenting time and significant decision-making responsibilities will be allocated between the parents. If any of these issues are contested to the point that the couple cannot come to an agreement on their own, they will typically have to go to trial.

In most types of divorces, both spouses are willing to cooperate and openly share and exchange information in an informal way between themselves and their attorneys. In many contested and complex divorces, however, there is a much higher chance that one spouse will be unwilling to cooperate with the exchange of information. Because of this, in most litigated divorces, and even in many other types of divorces, the discovery process is used to gather information.

What Is Discovery?

The discovery phase is part of your divorce that takes place after the initial divorce petition is filed, and it serves to gather information, mostly financial in nature. Discovery also allows you and your attorney to obtain all of the evidence and information that you need to address disputed issues. There is one main purpose of the discovery process: to ensure that both spouses and their attorneys have the same information available to them when making decisions. However, your attorney also has another goal in mind during the discovery process: to gather the information you need to ensure you are able to negotiate a fair agreement. The difficulty or ease of the discovery process is entirely up to you and your spouse and how cooperative you are with one another. 

Six Elements to the Discovery Process

Since the purpose of discovery is to gather as much information as possible about the finances of both spouses, there are multiple ways you can get that information. The methods used during your discovery process depends on your divorce and the type of information you need. Not all divorce cases will include a formal discovery process, and not all discovery processes will include all six of the following elements:

Formal Requests and Disclosure

Starting the discovery process is as simple as either you or your spouse’s attorney sending the other party copies of the necessary financial documents, as well as a list of the documents needed for their own record. Illinois law states that full financial disclosure is required when getting a divorce. This means that both you and your spouse are required to fully disclose and produce copies of items such as, but not limited to:

• Pay stubs showing the income that each spouse earns

• Checking and savings account records

• Appraisals or other documents showing ownership of fine art, jewelry, antiques, etc.

• Retirement account ledgers

• Documents relating to real property interests, such as deeds, mortgage documents, or rental property information

• Life insurance policies

• Health insurance policies

• Car insurance policies

• Homeowner’s insurance policies

• Tax returns from the past five years

• Your pre- or postnuptial agreement, if you have one

• Estate planning documents

The list of documents sent as a request to a spouse and their attorney is more of an informal request for those documents. Though it is an informal request, both spouses are required to give full disclosure, so you can ask the court to punish your spouse if they do not comply. You and your spouse will both be required to sign an affidavit of financial disclosure, which certifies under perjury that you have been fully transparent with your finances. 

Interrogatories

Simply put, interrogatories are written questions that each spouse can submit to the other and that each spouse must respond to. Often, these questions will pertain to the spouse’s income, debts, and assets, to assist with both asset allocation and spousal maintenance determination. Interrogatories can also be used to establish other facts as well, such as a spouse’s work history, educational background, and income history, which could also be used to supplement asset allocation or spousal maintenance claims.

Written interrogatories are limited to a maximum of 30 questions, and a party is required to answer them in writing within 28 days after they are served. Some restrictions apply to what interrogatories can contain, as they are supposed to be questions that are only related to the divorce case, and they should “avoid undue detail and...unnecessary burden and expense” on the answering spouse.

Admissions of Fact

This tool can be used to help gather information during the discovery process by asking the spouse a question and requiring them to either confirm or deny the statement. As with interrogatories, spouses are limited to 30 requests for admission, but they can be used at any time throughout the divorce process, and they can be helpful in getting a “yes” or “no” answer from your spouse on certain topics. Admissions of fact can be requested on nearly anything, but they can be especially helpful when attempting to verify the validity of documents and find hidden assets.

When requesting an admission of fact from a spouse, your attorney must serve a written request of the admission to your spouse and their attorney. They have 28 days to respond to the request; otherwise, the admission is accepted as fact.

Requests for Production

If you or your attorney have specified certain documents or areas that you would like to examine more closely, you can ask for specific documents by using a request for production. These requests can be used to obtain documents that are missing from the initial disclosure, or they may include documents related to assets that you suspect are being concealed. The documents or items that you would like to request copies of can include:

• Any and all documents or reports related to an expert witness whom you intend to call at trial

• Any written, signed, and/or recorded statements by any party involved in the divorce, including friends, family members, witnesses, investigators, or employers

• Any documents received in accordance with a subpoena request

In many cases, documentation is the only source of information in a divorce. It is not uncommon for one spouse to be the “out spouse” when it comes to the couple’s finances, meaning they are completely out of the loop regarding the family’s income, expenditures, assets, and debts. This is where the discovery process and especially the request for documentation can come in handy.

Deposition

A deposition is a sworn statement that is given in response to an attorney’s questions that is transcribed by a court reporter and deemed fact. For all intents and purposes, a deposition is simply a way of getting a person’s testimony before the trial takes place. These statements can be used to fact check certain things, or they can be used to point out that a person’s story has changed. Like answering questions during the interrogatories or responding during the admissions of fact, depositions are given under oath, meaning if anything a person says is proven to be false, they could be charged with perjury or face other consequences.

Subpoenas

In some complicated and contested divorces, subpoenas may need to be used in order to produce the documents needed, especially if a spouse is attempting to withhold information. In the state of Illinois, there are two types of subpoenas that are recognized: a subpoena ad testificandum, or a “subpoena to testify” and a subpoena duces tecum, or “to bring with you,” as in documents. Most of the time, subpoenas used during a divorce are not used to bring a witness in for testimony. Rather, they are used to require a party to produce certain documents. If necessary, subpoenas can be used to obtain information from financial institutions about a couple’s accounts or assets.

Subpoenas are often used in contested and complex divorces because they are a last resort used against uncooperative spouses. A subpoena comes with legal ramifications if a person chooses not to comply with the order. Often, subpoenas are useful in divorces involving a controlling spouse or hidden assets.

Let Our DuPage County Contested Divorce Lawyers Help You

To ensure you get your fair share of the marital estate, you need to go through the discovery process so that you and your attorney will have all of the correct information at your disposal. The discovery process is one of the most important parts of your divorce, especially if you are divorcing a contentious and potentially spiteful spouse. At Weiss-Kunz & Oliver, LLC., we have successfully litigated numerous contested divorces, and we have handled multiple complex divorce cases, such as those involving hidden assets or high net worth. Getting a divorce is stressful for anyone, but our Elmhurst, IL contested divorce attorneys can help you complete the process as smoothly and efficiently as possible. To schedule a free consultation and get started with your divorce case, call our office today at 312-605-4041. 

Sources:

https://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=59

https://courts.illinois.gov/SupremeCourt/Rules/Art_II/Art_II_Forms_Appendix.pdf

http://www.illinoiscourts.gov/SupremeCourt/Rules/Art_II/ArtII.htm#201

https://www.mydomaine.com/step-by-step-explanation-of-the-discovery-process-1103376