Many spouses going through a divorce know very little about their family’s finances, including their spouse’s income and employment bonuses and the family’s assets and debts.
If you’re in this position, and you have a very cooperative and honest spouse, getting all of this information should be easy. Unfortunately, divorcing couples often end up fighting over what information needs to be disclosed in the context of the divorce, and for some, obtaining relevant financial information may become harder than pulling teeth.
If you're at a loss over what to do regarding your spouse’s refusal to produce information, it may be time for you to utilize a powerful legal tool called “divorce discovery,” which can help you get the information you need from your spouse and even third parties, such as banks, mortgage lenders, and even your spouse’s employer.
Overview of the divorce discovery process
After the spouse requesting the divorce (called the “petitioner”) files a “Petition for Dissolution of Marriage,” the other spouse (called the “respondent”) must file his or her response to the petition. Both sides must make sure their divorce paperwork is filed with the court and properly served upon (delivered to) the other spouse. Once this is complete, either side can serve discovery requests and the court can hold hearings and make orders, including orders about the production of information and documents.
Both spouses can, and often do, conduct discovery. The divorce discovery process is controlled by specific Illinois discovery laws (see the Resources section below) which are designed to compel the exchange of information that’s relevant to the particular facts and allegations in a couple’s divorce.
What information can I request in the divorce discovery process?
Remember that every divorce is different - what was relevant in your best friend’s divorce may not come up at all in yours. Not all of the following categories will be pertinent in every divorce case, but here is a list of some of the information divorcing spouses might need:
- information and documents regarding the location, value and ownership of the couples’ property (for example, homes, cars, jewelry, collectibles, stocks and stock options, investment accounts, and business assets)
- information and documents regarding the location, value and ownership of each spouse’s separate property
- information and documents regarding either spouse’s income and employment, such as tax returns, employment contracts, W-2’s, statements for any employee benefit-accounts (401)k), FSA, HSA, dependent care), employee stock option plans, and documents and information regarding earned or potential bonuses
- expert witness reports regarding divorce issues, such as child custody arrangements, business valuations, or “vocational evaluations” (an evaluation of how much income either spouse could earn based on education, skills, job history, and current employment opportunities), and
- emails and other documentary evidence regarding any other issues in the divorce, for example, if one spouse is accused of wasting marital assets, the other spouse can ask for all emails or any other documents relating to that issue. Or, if the date of separation is contested, spouses can ask for all information and documents that might prove their claim as to the correct date.
What are the typical methods of divorce discovery?
You can try to complete the discovery process on your own, but it’s really not recommended. The discovery process is governed by technical rules of law that generally require several years of legal practice to master. In addition, it is a deadline-driven process - if you miss a discovery deadline, you have likely given up important legal rights that you can rarely (if ever) get back.
If you’re at the point where you know you’ll need to use the discovery process to get information from your spouse, you should contact an experienced family law attorney who can help you prepare the discovery and see it through to the end. And if you plan on taking any depositions (discussed in more detail below), you should definitely hire an attorney to prepare for and take the oral deposition.
Here are the most common methods of discovery.
Interrogatories are written questions, and responding parties have 28 days to produce their answers.
Requests to Produce Documents and/or other Tangible Things
These are written requests asking the other side to produce documents and/or other tangible things for inspection. Again, the responding party has 28 days to gather and produce the requested records and/or making the tangible things available for inspection and serve written responses.
Request to Admit Facts and/or the Authenticity of Documents
With this discovery tool, you may ask your spouse to admit or deny specific facts and/or the authenticity of documents, such as a letter, a deed, or some other document. For example, you may ask your spouse to admit or deny that: "On or about May 1, 2010 ________[he or she] signed a Waiver of Homestead for the family residence located at ______________."
If you fail to respond to a request to admit on time, the facts set forth in the request may be deemed admitted. The consequence of that failure could be devastating to your case; timely responses are essential.
Subpoena Duces Tecum
If your spouse denies having access to records, or you don’t believe all records are being fully disclosed, your attorney can prepare a subpoena duces tecum (subpoena for the production of records only) and direct it to any third party you believe might maintain the records you need, such as a bank, employer or mortgage lender. The clerk of court issues the subpoena and the local Sheriff serves it on the third party. If subpoenaed parties fail to produce records, courts may hold them in contempt.
At an oral deposition an attorney asks a witness (your spouse or another third party with relevant information) a series of questions. The witness answers under oath. If any answers are proven to be false, he or she could be charged with perjury (lying under oath). The questions and the answers are recorded stenographically (by a court reporter) or via video recording, or both.
Under Illinois law, there are two types of depositions. The first is a “Discovery Deposition,” which is designed to obtain information regarding a party's personal affairs and positions concerning the issues involved in the divorce. This helps to establish a spouse’s position regarding the facts of the case. If a witness tries to change a position at trial, and those changes are inconsistent with the deposition testimony previously given, the opposing party’s attorney can “impeach” that witness (meaning show that the witness is not credible).
The second type is an “Evidentiary Deposition.” Unlike a discovery deposition, which is more of a fact-gathering type of procedure, attorneys must strictly follow the Illinois Rules of Evidence when taking “Evidentiary Depositions.” Typically, evidentiary depositions replace trial testimony. Often, it’s more economical to take the evidentiary deposition of a doctor, mental health provider or out-of-state witness, than to bring that individual into court for a trial, which may drag on for several days due to overbooked court calendars or other potential delays.
For the complete text of the rules governing the Illinois discovery process, click here for the Illinois Rules on Civil Proceeding in the Trial Court - Rules 201-230.
For more information on how to find hidden assets, see How to Find Hidden Assets in Divorce, by Lina Guillen.