The Discovery Process

BFS Explains: The Discovery Process

The typical divorce case presents issues of support, division of assets and liabilities, and parental responsibility. A judge cannot decide, nor can the parties settle these issues without accurate information. Often, one party has less knowledge than the other about such matters. To ensure during divorce that both parties have equal access to necessary information, the law provides various means of obtaining information through the “discovery” process. Discovery can take any, or all, of the following forms:

Financial Affidavit: This type of discovery is mandatory upon the filing of a divorce case. Once the petition for dissolution is filed, both parties are required by local rule to submit a financial affidavit, which provides a useful summary of income, expenses, assets and liabilities.

In modest asset cases, the financial affidavits of the parties may provide much of the information necessary to resolve the case. Often, more information will be required than can be gleaned from the financial affidavits. In such circumstances, additional discovery procedures are initiated, all of which are created by rules that all attorneys are bound to follow. The types of discovery which may be initiated include:

Interrogatories: Written questions directed to the opposing party seeking information about facts relevant to the case. They are answered in writing under oath. The Illinois Supreme Court has provided “standard” interrogatories in divorce cases. There is a limit on the number of questions which can be asked.

Request for Production of Documents: Each party may, by written request, require the other to produce documents in the producing party’s possession or control that are relevant to the case. This method of collecting information is used in most cases. The most commonly requested documents are for three to five years of bank statements; credit card statements; financial statements; business records; pension statements; diaries; and the like. These records are reviewed to see the historical pattern of spending, and to assess if any dissipation has occurred.

Deposition: Depositions consist of the questioning of an individual to obtain information under oath with answers being recorded by a court reporter and perhaps via video, and they are an important discovery tool. Parties, business colleagues, paramours and anyone listed as a witness will likely be deposed. These are the people with knowledge of relevant facts. A deposition transcript may be ordered where each question and answer given is typed up by a court reporter. This does not occur in court but is subject to some of the rules of evidence that operate in court. If the parties are represented by lawyers (as they almost always are), the lawyers will be present at, and will conduct the deposition. The team at Boyle, Feinberg Sharma, P.C. prepares clients in advance for depositions. We will want your assistance when we prepare to depose your spouse and others.

Subpoena: A party may obtain document from third parties by service of a subpoena, which is a court command to provide the documents at a stated place and time. A subpoena may require production of documents only, an in-person deposition, or both.

Not all of these discovery methods are necessary or appropriate for every case. What methods should be employed in an individual case is a matter for the judgment of the attorney and depends on the facts and other circumstances of the case.