In this article we will be discussing What Are My Options When My Spouse Refuses to Turn Over Discovery and we will answer the questions of:
- What is the Discovery Process?
- What is the Purpose of Discovery?
- Can I Take Any Action if My Spouse Refuses to Comply With My Discovery Requests?
- What is a Motion to Compel?
- Can I Gather the Information Without Their Consent or Turnover?
- How Long Does it Take to Have a Subpoena Answered?
- Are Subpoenas Expensive?
- Can My Spouse Be Responsible for the Extra Cost Associated with Discovery Due to Their Failure or Refusal to Comply?
In Illinois the Court expects that the parties engage in a full and open exchange of all material information between them. Certain documents or information will remain in the sole possession of one party or one party is able to access that information with relative ease. It is the expectation of the Court that both parties fully understand the assets and liabilities of the marriage before any settlement can be entered or trial may be conducted. But in some cases, one of the parties will refuse to participate willingly in an exchange of information.
What is the Discovery Process?
Discovery is the mechanism provided through the court to determine any potential evidence that the parties may need for the trial process. The parties are permitted to issue various production requests, issue written questions of the parties, request an admission of facts, and depose any potential witnesses in connection with a potential trial. To learn more about discovery in general please check out our article In Illinois What Should I Ask for in Discovery? (oflaherty-law.com)
What is the Purpose of Discovery?
Discovery is intended to ensure that both parties are on an equal informational footing in the litigation process. Each party should have a full disclosure of all relevant information related to the marriage.
Can I Take Any Action if My Spouse Refuses to Comply With My Discovery Requests?
The actions you can take relate strongly with the amount of information you have available to you. In a situation where your spouse refuses to turn over business or account records you can issue subpoenas to the company maintaining records in those instances. You may also depose potential witnesses to determine additional information that you may need. In instances where your spouse is being particularly evasive or combative, you may need to seek judicial intervention to retrieve the information that has been sought.
What is a Motion to Compel?
A motion to compel is a formal request that the Judge order the other party to comply with the requests that have been issued to them. The Judge has the authority to require that the documents be produced in a certain time frame and that that specific items be turned over. Additionally the judge can find the other party in contempt for not complying with the requests and find them in contempt of court which can result in jail time for the other party.
Can I Gather the Information Without Their Consent or Turnover?
Yes, if you have enough relevant information. One mechanism for discovering information is to issue subpoenas against accounts and business entities for a production of records. The records in that third party’s possession and control will be turned over without the consent or involvement from your spouse. In many cases this is the easiest way to gain access to this information but it can be costly and time consuming.
How Long Does it Take to Have a Subpoena Answered?
Generally a subpoena is responded to in roughly 30-45 days. The language in the rider to a subpoena generally requests that the production take place no later than 28 days from the date of issuance. With that in mind, the records being sought are usually quite intensive so it may take additional time for the documents to be produced effectively.
Are Subpoenas Expensive?
The cost of the subpoena is dependent on how large the production is going to be. The party issuing the subpoena is responsible for paying the third party to compile and send out any records. The prices are generally set by the third party but can add up rather quickly depending on what the turnover winds up being.
Can My Spouse Be Responsible for the Extra Cost Associated with Discovery Due to Their Failure or Refusal to Comply?
Yes. In an instance where the other party is being evasive or is otherwise refusing to produce the requested discovery, they can be held responsible for the costs and fees associated with the additional discovery actions that need to be taken. In order to have the other party pay for these matters, a petition must be filed with the Court requesting that the Court require the nonmoving party be responsible for the fees and costs incurred due to their failure to comply with reasonable discovery requests.
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