FAQ: Gathering evidence in a divorce

You might ask, “How do I gather evidence in a divorce?” As an Illinois divorce lawyer for wealthy families, I often run into people who have a critical need to collect evidence. It is often said that evidence wins cases. That is as true in an Illinois divorce as in any other type of case.

This article is about gathering evidence in a divorce.

Why do I need together evidence?

Convincing your lawyer of any given fact is not something that is going to help you succeed in your divorce case.

Sure, you want your lawyer to believe you. But what you need to focus on is proving a given fact to the judge. And what you want to do is avoid the he said she said type of situation.

If it is just your word against your spouse’s word, you don’t know who the judge is going to believe. The judge might believe you. The judge might believe your spouse. Or, as is often the case, the judge might decide both people are lying.

That’s why evidence matters.

What types of documentary evidence can I get myself?

Documentary evidence is things like bank statements, letters, and emails.

One of the most affordable and quickest ways for people to gather evidence is for parties to gather evidence themselves.

Of course, you don’t want to break any laws. But you might be able to gather evidence that exists at your residence.

For example, your spouse might have financial documents laying around. You might be able to gather evidence about money that is being hidden or transferred.

You might also be able to gather evidence about job offers, salaries, and that sort of thing.

If I was your divorce lawyer, I would probably try to help you understand the best way to get this done.

Can I secretly record my spouse?

A lot of people want to know if they can secretly record their spouse. But that depends whether we’re talking about audio or visual recording.

Let’s start with auto recording.

In Illinois, with few exceptions, audio recording a person’s conversation without that person’s knowledge is the crime of illegal eavesdropping.

You don’t want to commit crimes, right?

But like I said, there are exceptions. One exception that often applies to divorces in Illinois is the “crime” exception. 

It is legal to create an audio recording of someone’s conversation without that person’s knowledge if that person is committing a crime.

For example, domestic violence is a crime in Illinois. That means that a speaker can be recorded without his or her knowledge if the conversation being recorded can be defined as domestic violence.

When my clients want to audio record, I have a conversation with them about the specific facts. One has to be very careful in this area because of the possibility of being criminally charged with illegal eavesdropping.

There’s also video recording.

Except for areas of privacy like a betterment bathroom, it’s generally okay to video record your spouse without his or her knowledge. Of course, often video recording involves audio recording. So you would want to make sure you are not illegally creating an audio recording of someone’s conversation without his or her knowledge. So long as you’re not doing that, a video recording is generally okay.

People often want to video record their spouses to gain evidence of abuse, or evidence that the spouse is cheating.

Similar to creating an audio recording, when my clients want to video record, I need to have a conversation with them about exactly what they want to do, and how to handle it.

How can I get evidence from my spouses employer?

My client often want to know how they can gather evidence from their spouses employer.

Records for an employer can be useful and relevant in regards to questions of spousal maintenance, and income.

A lawyer can use a subpoena to acquire records from a third party, such an employer. The subpoena is basically a court order that a lawyer can sign without going to court. It demands that non-partisan case turnover documents, records, and other things.

How can I get my spouse’s financial records?

Getting access to financial records is kind of like getting your spouse’s employment records.

Subpoenas can be used.

A lot of my clients are worried that their spouses are hiding money, that they have income from strange sources, and that sort of thing.

Many questions related to those issues can be answered by obtaining financial records by subpoenaed from banks, pension funds, and those types of places.

Can I have someone follow my spouse?

Have you ever wondered what your spouse is doing all day?

Maybe there’s a secret job.

Maybe your spouse is spending money on a significant other.

You might have questions, and you might want answers. For questions like those, physical surveillance can often be the answer.

I recommend clients don’t engage in too many self-help measures. It’s often best to use a private investigator to conduct surveillance.

That’s with other types of evidence gathering, I would discuss physical surveillance with my clients before getting into it.

Well private investigators are an additional cost to divorce, it can be a cost that is well worthwhile if valuable evidence is obtained as a result.

Can I put a GPS on my spouse’s car?

Physically following someone can be a lot of work.

Wouldn’t it be nice to put a GPS tracker on your spouse’s vehicle?


Tracking someone’s location with GPS can reveal affairs, secret jobs, and all sorts of information.

But tracking using a GPS device is sometimes illegal.

If you are interested in tracking your spouse using a GPS device, then you should discuss it with your lawyer. I previously used GPS to track spouses of my clients, and it was very interesting.

When do I talk to my lawyer about gathering evidence?

A lot of times when I start up a case, I will give a client an overview of evidence gathering.

But keep in mind, divorce is a step-by-step process.

Sometimes it seems like there’s an endless amount of evidence together. So you definitely want to keep everything within reason.

When my clients are interested in gathering evidence, I help them understand what would be most useful, what is their priority, and what are some estimates of the cost.

That’s how I help my clients make smart decisions.

About the author: Contact Illinois family law attorney David Wolkowitz at 312-554-5433 or online. He is a family law and divorce attorney serving Chicago and the Counties of Cook, Champaign, DuPage, Kane, Kendall, Lake, McHenry, and Will. Areas of practice include divorce, uncontested divorce, child custody, visitation, spousal maintenance, child support, and the Uniform Child Custody Jurisdiction & Enforcement Act (the “UCCJEA”).