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What is Discovery in an Illinois Divorce and Child Custody Cases?

Updated on
September 25, 2020
Article written by
Attorney Kevin O'Flaherty

In this article, we explain Discovery in Illinois divorce and child custody cases. We will cover things to remember about the discovery process as well as 5 different methods for Discovery: Request for Production, Interrogatories, Request for Admissions, Depositions, and Subpoena Duces Tecum.


Discovery provides a complete understanding of the issues and facts. It occurs after you have filed for divorce or child custody—it is the “investigation” phase, and one of the most significant steps in the divorce or child custody process. It is the exchanging of information.


Many spouses know very little about the entirety of their family’s finances, debts, assets, employment bonuses and wages. Discovery allows opposing parties to request information from one another, as well as additional parties if necessary. It is used to determine the value of assets, income, debts and other aspects of the case. It is evidence, and provides proof when there are contested issues. There are five different methods for Discovery:


  • Request for Production
  • Interrogatories
  • Request for Admissions
  • Depositions
  • Subpoena Duces Tecum


Throughout the Discovery process your attorney may utilize one or all of the different methods to get the information necessary to strengthen your case. 


Not only will you be seeking Discovery, the opposing party will also be requesting Discovery. Your attorney will request information from you, review the information, and submit the information to the opposing party. By providing your attorney with as much of the relevant information needed you create a better case, and assist your attorney in laying out realistic expectations for 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.


Things to remember about the discovery process:


  • It is very likely everything will be discovered at some point in the process. This is especially true in contentious divorce cases. Be upfront in providing your attorney all of the requested information.
  • It is imperative to be honest with your attorney about the facts and the documents that may come out. If your attorney knows what to expect your attorney can plan accordingly.
  • Be honest during the process. Nothing is worse than getting caught lying, it only hurts your case.


Different Types of Discovery in Illinois


Shortly after filing a petition or counterclaim for divorce or child custody your attorney will begin the Discovery process. Discovery is the gathering of information from the opposing party. There are five different methods of obtaining information in a divorce or child custody case. This includes:  


  • Interrogatories – An interrogatory is a written open-ended question, that must be answered in writing. It requires you or the opposing party to answer with facts regarding specific events. Questions can range from specific “How long have you worked at your current employment.” to general “What happened on June 12, 2019.” 


Only parties to the action can answer interrogatories. However, your attorney can help you by coaching you on using language that is more favorable as long as the answer is truthful and not deceptive. Your attorney may also object to the form of the question if it is burdensome, unfair, or difficult to understand.  After answering the interrogatories your attorney may put them in typed form. You will then sign an oath verifying all the answers you provided were true and correct. 


 In Illinois interrogatories are limited to 30 questions, and the responding party has 28 days to reply.


  • Request for Production of Documents – This request is used to get specific documents such as bank statements, credit card statements, mortgages, retirement accounts, tax returns, W-2’s, property appraisals, business income tax returns, emails, text messages and other documentation relevant to your case. Original documentation does not need to be provided, copies will work. 


In the state of Illinois a party has 28 days to provide the requested documents after they have received notice of the request. There is no limit on the number of documents that can be requested.


After receiving the documentation of the other party, based on the review of the documentation, your attorney may request additional documentation or information. 


  • Request for admissions – A request for an admission asks the other party to admit or deny a specific fact under oath. Unlike interrogatories the answer will be “yes” or “no” answers.  Admissions help in establishing “truths” before trial, and limiting the scope of the trial by determining what aspects of the case are in dispute.


In Illinois admission are limited to 30 unless the parties agree to more. The responding party has 28 days to reply. In Illinois you must provide a Warning which states the following: “WARNING: If you fail to serve the response required by Rule 216 withing 28 days after you are served with this document, all the facts set forth in the requests will be deemed true and all the documents described in the request will be deemed genuine.” This statement needs to be in bold 12 point font, and assists with ensuring admissions are provided in a timely manner.


  • Subpoena duces tecum – Technically speaking Subpoenas are not discovery, but are another avenue for obtaining information. If the opposing party denies you access to the records, or you do not believe all records have been disclosed your attorney may prepare a subpoena directing the third-party (i.e. bank, mortgage company), to produce the requested documentation. If the subpoenaed parties fail to produce records, the court may hold them in contempt. 


  • Depositions  - A deposition is sworn testimony from an opposing party or witness. Typically the deposition is done at the law office of the requesting party. At the deposition the court reporter will have you swear an oath, and the court reporter will take down every word that is stated throughout the deposition. Sometimes a video deposition may be taken instead.


Statements from depositions can be submitted to the court as admissions for trial, or to contradict testimony of a witness at trial. If a witness is deposed, and fails to appear for trial, the deposition may be used in place of the live testimony. 


Depositions can be costly in a divorce. You will pay for the attorney, the court reporter, and the transcript of the deposition.


What is Discovery in an Illinois Divorce and Child Custody Cases?
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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