What is "Discovery" in an Illinois Divorce Proceeding?

As with other types of cases, “discovery” is that phase of a divorce proceeding where the parties get to use certain kinds of legal tools to learn information from third parties and the other side. Oftentimes, one spouse will have acted as the financial manager of the two during the marriage and, when divorce proceedings commence, the other side may be left feeling in the dark. The good news for both parties is that there are tools available for closing the information gap.

When seeking information from the other spouse, there are two principal discovery tools: (1) the interrogatory; and (2) the request to produce.

The interrogatory is simply a written question which requires the other side to respond with a written answer. The preference is that interrogatories be submitted in batches of less than thirty (30) individual questions. The responses submitted by the answering party are treated similarly to testimony given under oath, which means that giving an untruthful response can wind the answering party up in a lot of trouble, including sanctions. One common example of an interrogatory submitted in a divorce proceeding is:

“State the name and address of any accountant, tax preparer, bookkeeper and other person, firm or entity who has kept or prepared books, documents, and records with regarding to your income, property, business or financial affairs during the course of this marriage. “

The response to this question should give the submitting party the information necessary to seek further information from the third party through the use of a subpoena duces tecum, described below.

The request to produce is a demand directed at a party to produce any documents, objects, or tangible things matching certain descriptions. This can be useful when one party has access to records which the other party doesn’t, such as tax returns, bank statements, or life insurance policy paperwork. Like interrogatories, the preferred manner of submitting requests to produce is in batches. Unlike interrogatories, the number of requests to produce need not be limited to thirty (30). An example of a commonly used request to produce in a divorce proceeding is:

“Provide all pay stubs, including any other indicia of income received by you from your employer within the past six months.”

If you later decide that additional information is needed, you are generally permitted to submit additional requests.

While interrogatories and requests to produce are useful tools for obtaining information from the other side, third parties, such as banks, employers, and other financial institutions are not subject to the same requirements. For third parties, the most commonly used discovery tools are (1) the subpoena duces tecum; and (2) the deposition.

A subpoena duces tecum operates similarly to a request to produce in that it seeks the turnover of tangible documents, objects, and tangible things. Unlike requests to produce, sometimes payment for the costs associated with finding, copying, printing, and mailing such documents may be required by the requesting party prior to their production. Because such third parties are not formal parties to the case (and therefore not always subject to the jurisdiction of the court), obtaining records from an out-of-state entity can prove challenging.

Unlike interrogatories, requests to produce, and subpoena duces tecums, a deposition does not take place on paper. Rather, a deposition is a personal interview conducted by a party (or his/her attorney) and the deponent, and can be useful when a party needs additional information that would be too cumbersome to learn through the production of documents. Examples of questions which might prove challenging if limited to requesting the production of documents, alone, include:

"Describe the conversation you had with Jonathan on March 2, 2016. What did he say to you, and how did you respond?”

or:

“Direct your attention to the bank statement for January of 2014. Certain codes are used throughout the document such as ACM, DD, and XE1. What do these codes mean?”

The tools described above are the most common discovery devices in most divorce proceedings in Illinois, but they are not the only ones. The law governing discovery can be deep and challenging, involving nuance and adherence to strict procedural requirements. Further, knowing when to employ discovery, with all the time and cost involved therein, can be an art all to itself. If you are struggling with an information gap or having trouble responding to discovery which is being propounded on you, consider hiring an attorney who can help you work through the process.