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Kevin O'Flaherty

In this article, we will discuss what one should ask for in Discovery in Illinois. We will answer the following questions:

  • What is the Purpose of Discovery and Why is it Important?
  • What is the Discovery Process in Divorce?
  • What happens if they refuse to provide the requested discovery? (What happens if they do not comply?

Each divorce or child custody case varies as to what is needed to resolve the case. While you or your spouse may know some of the general information being sought your attorney does not. The information you gather will help your attorney to educate you regarding your rights and facilitate a strong settlement. 

  • If you are requesting a fair distribution of assets, the focus of discovery will be on financial documents such as pay stubs, tax returns, lists of personal property, banking information, and other pertinent financial documents.

  • If you are wanting to divide a business, or are entitled to a share of the business you will want business records, balance statements, payroll records, business tax returns, and full business banking information. 

  • If there is a custody dispute, you will require records related to the conduct of your spouse, proof they abused drugs or alcohol, or that they committed acts of domestic violence, pay stubs, income verification used to help in determining the amount of child support you should receive or will be paying.

  • If you suspect your spouse is hiding assets, you will want to consult with your attorney regarding the discovery needed to reveal the missing assets.

  • Other information you may consider requesting are emails, copies of text messages, experienced witness reports, business valuations, job history, and current employment opportunities. The information you gather will be based on your situation and what you need to build the strongest case possible. 

It is always better to ask for more than less when you are unsure of what you may need. The court will determine what is permissible. Initially you will request a large amount of documentation, however the discovery process will need as your case progresses. You will need to update your attorney with any new or changing information. This helps with keeping the process moving forward, and avoiding any surprises as you build your strongest case possible for settlement or trial. 

What is the Purpose of Discovery and Why is it Important?

The purpose of discovery is to provide a clear picture of the full issues and facts related to your case—it reveals the truth. It is evidence that may be used in court. It is also designed to prevent the opposing party from “ambushing” at trial and surprising the other side with facts that had not been revealed. 

Without discovery your attorney is working in the dark. Your attorney does not know all the ins and outs of your marriage. In order to best advise you, your attorney needs to review and analyze all of the discovery to resolve any issues that may arise—it eliminates the guessing game and provides a clear picture of the facts and issues to your case.

Discovery can be time intensive, and may feel overly invasive, but is critical in negotiating a settlement, or preparing for trial. By preparing for the process you will feel more stable as you move forward through the divorce process.

What is the Discovery Process in Divorce?

The Discovery process begins with an in-depth interview. We will be asked questions regarding your child’s schooling, schedules, work information and financial information. This helps provide a foundation to use the various methods of discovery and knowing what to request.

Once your attorney has the information needed your attorney will begin the formal Discovery request to the opposing party. Based on the information provided your attorney may request documents, and answers to written questions through interrogatories, and admissions. In the state of Illinois the opposing party has 28 days to provide the requested documentation, or answers. If you do not get the requested information in 28 days other avenues are available to obtain the requested information.

Your attorney may receive the same request from the opposing party. You will need to gather all of the documents requested, answer all of the questions truthfully, and then provide the information to your attorney. Your attorney will then review the information, have you sign an oath stating everything is true and correct, and will forward the information on to the opposing party.

When your attorney receives the requested information from the opposing party she will review it, and determine the next step. This could be another request, it could be hiring an experienced to provide a valuation to the business and property, it could be depositions or number of other avenues. Discovery I may continue through the course of your case. You and the other party will have a duty to disclose any new or changing information to your attorney. So although the bulk of Discovery is done at the first of your case, up until final settlement it may continue.   

What happens if they refuse to provide the requested discovery? (What happens if they do not comply?)

Failing to provide discovery can result in fines by the court, sanctions and possibly even jail time. Sometimes the court may enter a default judgment and assess the full value of the asset based on the fact the information was withheld. The court may also make the spouse who refused to provide the discovery pay attorney fees for their soon to be ex.

If a spouse denies having the documents, does not fully disclose all the requested records, or withholds the documents all together, your attorney can prepare a subpoena duces tecum. This allows your attorney to go to any third party you believe maintains the records and get them on your behalf. If the subpoenaed parties refuse to provide the records the court may find them in contempt.

Not complying with discovery is not smart. Eventually everything comes out, and not providing the requested information is frowned upon by the courts. If you get caught lying or hiding assets the judge may award the full value of the asset, or you could get fined, or possibly end up in jail. In addition, it makes it difficult for your attorney to represent you without all of the needed information. 

Simply not providing the information is not much different than lying. The judge will not look favorable on the fact you are delaying proceedings, and you may lose any leverage in negotiating a fair settlement. You could also end up paying the opposing party’s attorney fees, because you are drawing the case out, and due to your action causing more hearings. 

If you cannot provide discovery in the time given, you can submit a written request to the court providing the circumstances that are preventing you from getting the requested information, and an estimate of how long it will take.

Discovery can be costly and time consuming, but a good attorney will know how to limit the discovery by putting forth proper challenges. A good attorney will know how to dig for information on your behalf, and despite the expense you could come out in much better shape. A good attorney will do what they can to protect your financial security.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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