When a divorce in Illinois is litigated, each side has the right to certain information. The process of acquiring that information is called “discovery.” Another way to put it is that discovery is the evidence-gathering process. In a litigated divorce in Illinois, each party has the right to engage in discovery. However, the process can be time consuming, and frustrating. I wrote the FAQ on divorce discovery to help people understand the process.
There can be a lot of evidence-gathering in a litigated divorce. This article discusses the three primary discovery tools that almost everyone will have get done. They are as follows:
- Financial disclosure affidavits: An affidavit that lists income, expenses, and assets
- Proof of income: Tax returns and pay stubs
- Interrogatories: Written questions pertaining mostly to finances
- Requests to produce: Requests for documents pertaining mostly to finances
Below I discuss the discovery tools generally, and specifically. The general principals discussed apply to all three types of discovery.
Why do I have to fill this stuff out?
The short answer? It doesn’t matter. The slightly longer, but full answer: because the law says your spouse has a right to get the answers from you.
Illinois Supreme Court Rule 213 states that each party has the right to serve written interrogatories upon the other party. In fact, the Illinois Supreme Court has published standard “Matrimonial Interrogatories” that are widely used.
Similarly, Illinois Supreme Court Rule 214 gives each party the right to request documents from the other party.
Financial affidavits are required by the “local rules” promulgated by the county circuit courts, such as the circuit courts of Cook, Lake, and DuPage counties.
For the most part, arguing with your lawyer about having to complete discovery will be a waste of time. While there are limits are discovery, fort he most part questions asked and documents requested are standard – so debating the issue with your lawyer will only result in higher legal bills.
The reason answers to the discovery are required is because they allow the following:
- Discover new facts: Answers to discovery can help discovery facts not know by you. Not everyone knows everything about their partner’s finances, for example. Knowing what’s going on is beneficial for putting on a case.
- Proving lies: Sometimes people lie in discovery. If that lie is discovered, the liar can face consequences in court.
When should I start working on discovery?
Ideally, when you know a divorce will contested (not by agreement), you should start working on discovery. There’s not much point in putting off the inevitable.
In fact, some circuit courts require parties to get started with discovery even before being asked by the other side. For example:
- Financial disclosure affidavits: In Cook County, Local Rule 13.3.1(a) requires the party filing the divorce to submit a completed financial affidavit to the other party within 30 days of service of the petition for dissolution. Other counties have similar rules. In Will County, Local Rule 8.04 requires a party to complete and tender a financial affidavit when asked to do so by the other party.
- Proof of income: In Cook County, Local Rule 13.3.2 requires proof of income to be tendered with the financial disclosure described above. The required proof of income includes 2 years of tax returns, and paystubs showing YTD income. Other counties have similar rules. For example, both Lake and McHenry counties have a Local Rule 11.02 which requires tax returns and paystubs [link to DuPage rule][link to Lake County Rule][link to McHenry rule][link to Will County Rules – downloads as PDF].
Technically speaking, Interrogatories and Requests to Produce don’t have to be answered until 28 days after they are served by the other party. But as I mentioned before, it’s best to get started working on this in advance.
What is someone refuses to answer discovery?
If discovery is refused outright, there are several possible consequences. For example, sanctions (fines) can be imposed by the court – and the party who has not complied with discovery can be ordered to pay attorney fees of the other party. Additionally, a patty can be held in “default” if discovery is not completed – that basically means that the party “defaulted” will essentially lose by being disqualified from participating in the case.
Sometimes, discovery is tendered late. In fact, this often happens in divorce in Illinois, but it’s good to avoid being late. There are times in the beginning of a case where being a bit late doesn’t normally have much of an impact. However, there are also times when a person who does not tender appropriate discovery can hurt his or her case.
What if someone lies in answers to discovery?
First, as you may know, people are supposed to tell the truth in court. Every lawyer I know has had clients call them and essentially ask for permission to lie in court. Know this: you should tell the truth in court, and in any document you provide to the Court. If you lie in court or in a discovery, you can face serious consequences. Many people who lie in discovery do not understand the evidence-gathering process. For example, I have proven in court that the other party lied in discovery because I was able to uncover evidence of the lies.
If you lie in court, you could face the following consequences:
- Sanctions: The judge can make you pay what amounts to a fine if you are late – but that’s usually when there is something egregious
- Lack of credibility: Credibility is important in court proceedings.
- Being held in contempt by the court: A judge can hold you in contempt – and put you in jail – for lying.
- Withdrawal of your lawyer: Personally, I don’t like to represent liars because they make me look stupid in court. Therefore, if a client is lying to me, I will withdraw.
What if I can’t get all the requested documents or information right away?
If you can’t get all the information immediately, you can provide some later. However, you should keep in mind that providing the documents or discovery in a piece-meal manner could cause your lawyer to do more work. Also, if you miss deadlines, there is a chance that you will be penalized by having to pay the other person’s attorney fees that are incurred when they go to court and try to make you provide the discovery by a certain deadline. That being said, it is fairly common for people to not be able to be fully compliant by the first deadline.
In some case, a lawyer can file motion asking the Court to excuse the tendering of certain documents or answering certain questions. The person wanting to be excused would argue that having to provide the answers or documents would be too burdensome, and unnecessary. But your lawyer would have to spend time doing that – so perhaps it is more efficient just for your to provide the requested answers or documents.
But keep this in mind: the more compliant you are, the lower your attorney’s fees are likely to be because your attorney will have to spend less time on discovery.
What is in a financial disclosure affidavit?
Generally speaking, financial disclosure affidavits include basic demographic information, monthly income from all sources, monthly expenses, all financial accounts and their balances, real estate owned, automobiles owned, health insurance coverage, and other matters.
Many counties have their own financial disclosure affidavits. See the below links:
- Cook County: [link]
- Du Page County: [link]
- Lake County: [link]
- McHenry County: [link]
- Will County: [link]
If you are getting divorce in Illinois, you should download the applicable for (or ask your attorney for one) and start working on it immediately.
Here are a couple points to keep in mind:
- Accuracy: You should strive for accuracy. Certainly, don’t lie. There are places on the forms that ask for monthly expenses, and monthly income. Sometimes, those figures vary by month; when that’s the case, you should record a realistic average.
- Completeness: Most people think the forms ask for too much information. Maybe they do. But you should try to answer completely. For example, if for each bank account you are supposed to record the name(s) on the account, the bank, the account number, and the balance, don’t just write the name of the bank and the balance. Giving incomplete information will likely cause your divorce lawyer more work – you don’t want to do that.
- Timeliness: Getting this to your lawyer sooner rather than later will be helpful.
Sometimes, completing a financial affidavit can seem overwhelming. But it’s not that bad once you get started.
The process my clients use is the following:
- Download the form: Download the form and fill it out electronically so it can be changed easily. Do not fill it out in your web browser – your input will not save that way. Download the form and open it using Acrobat Reader or some other program that will allow you to fill out and save the form.
- Fill out the form: Fill out the form as bets you can.
- Lawyer review: An attorney can review the form to see if it is complete enough or if elements of it need clarification.
- Revision: You may need to revise certain aspects of the form, or make it more complete.
- Notarization: After the affidavit is complete, it can be notarized.
What should I know about interrogatories?
The “interrogatories” are a bunch of different questions. Most of them are about income, assets, and debts. The purpose is to ask so many questions that answers to those questions gives a complete picture of the person’s finances.
The Illinois Supreme Court has issued standard “Matrimonial Interrogatories;” see them here: [link]. You will notice there are 27 standard interrogatories. Up to 30 are allowed.
Here are a couple points to keep in mind:
- Accuracy: You should strive for accuracy. Certainly, don’t lie. The interrogatories may look like a lot of work, but since most of them probably don’t apply to you, it’s not so bad.
- Completeness: Most people think the interrogatories ask for too much information. Maybe they do. But you should try to answer completely. For example, if for each bank account you are supposed to record the name(s) on the account, the bank, the account number, and the balance, don’t just write the name of the bank and the balance. Giving incomplete information will likely cause your divorce lawyer more work – you don’t want to do that. If a question does not apply to you, that’s fine. For example, for the a question about “trusts” that you may control or own, if you don’t have any, just write “n/a”.
- Timeliness: Like the financial affidavit, it’s good to get started on this sooner rather than later.
The process my clients use is the following:
- Download the form: Get the list of interrogatories. Either use the ones provided by the other party, or if you don’t have those yet, start with the standard matrimonial interrogatories [link].
- Draft your answers: Create a word document, and used an “ordered list” (ie numbered bullet points). Answer each interrogatory one-by-one. Save the document in Word format (.doc).
- Lawyer review: After you complete a first draft of the interrogatories, your lawyer can review it. Sometimes additional information and editing is needed.
- Revision: You may need to revise certain aspects of the interrogatories.
- Notarization: When the lawyer says the interrogatories are complete, then an “attestation” can be notarized which states they are complete. At that point they are ready to tender to the other party.
What should I know about Requests to Produce?
Requests to Produce refers to a discovery document that asked that the person to whom it is served tenders the documents requested therein. Illinois Supreme Court Rule 214 allows each party in a divorce in Illinois to tender Requests to Produce to the other party.
The standard Requests to Produce ask for documents going three years back. Normally that means three years prior to the filing of the Petition for Dissolution (the pleading document that starts a divorce case).
Here is a link to standard requests to produce: [link]. The types of documents requested are as follows:
- Tax returns
- Account statements for each financial account (check, savings, CDs, IRAs, 401ks)
- Deeds to property
- Debt account statements: credit cards, mortgages, car loans
Understandably, it can seem that requests to produce are burdensome. They are. However, you still need to work on it – and sooner rather than later helps.
The process my clients use is the following:
- Download the form: Review the list of requested documents. I will probably be similar to this: [link].
- Start gathering all the documents: Start gathering all the documents. Keep them in an orderly chronological fashion. If you are working with hard copies, keep them chronological, per each account. If you are working with electronic copies, then you can also keep them chronological in an easy manner by downloading them from a website (such as your bank’s), and naming them in the following format: YYMMDD Bank Party’s Name Last Four Account Digits. So for example, for a statement covering April 2015 from Chase Bank savings account # 1234 for Bob, the electronic file should be named 150501 Bob’s Chase Bank Savings 1234. When you name the electronic file that way, you or your lawyer can easily order them chronologically simply by sorting them on the computer. Additionally, it is unnecessary to open the file to see what’s in it. The more organized the files are, and the more descriptively named the are, the less time your lawyer will have to spend sorting through documents. That helps you.
- Lawyer review: Your lawyer will review the documents gathered, and may request more.
- Notarization: When the lawyer says the Requests to Produce are ready to hand over to the other party, then an “attestation” can be notarized which states they are complete. At that point they are ready to tender to the other party.
Long story short: Gather any financial record you have going back three years.
- Fill out your financial disclosure affidavit.
- Provide proof of income: Tax returns going back 3 years, ideally, and at least 2 months of paystubs
- Answer standard Matrimonial Interrogatories
- Provide documents for Requests to Produce
The better job you do at this, the less you will pay your lawyer. And you might even get divorced quicker.