The Discovery Process in Divorce and Parentage Cases
A look in the Discovery Process…
A major component of litigation is the discovery process. This article is a guide to the basics of navigating through a process that oftentimes is the most time-consuming, most expensive, and most informational aspect of a case. In both parentage and divorce cases, the discovery of the other party’s income, assets, and liabilities is a crucial part of evaluating one’s case, preparing for hearings and trials, and being prepared for settlement discussions.
Additionally, discovery concerning potential trial witnesses is also an invaluable piece of the litigation process. In Illinois, discovery is generally governed by the Illinois Supreme Court Rules, but each county also has various discovery rules that supplement the Supreme Court Rules. The key rule for discovery procedure is that the information sought must be relevant.
The discovery process often begins with the drafting of a mandatory financial disclosure statement. In Cook County, this is called a 13.3.1 Disclosure Statement because it is required by Cook County Local Rule 13.3.1. Lake, DuPage, McHenry, Will, and Kane counties also require parties to complete a financial disclosure statement at some point in the discovery process. The disclosure statement is essentially a sworn affidavit, and it provides a glimpse into the financial aspects of a case. Each person that fills out a disclosure statement must list information such as income, expenses, liabilities, and assets (including bank accounts, stocks, retirement accounts, cars, real estate, other property of significant value, etc.).
Additionally, he/she must disclose whether he/she is involved in any court proceeding or lawsuit, whether he/she has sold or transferred any assets of significant value, and the types of insurance policies he or she has an interest in. In all divorce and parentage cases, the parties will exchange their disclosure statements at least once and will often be required to update their disclosure statement throughout the course of their case.
Standard written discovery most often consists of Interrogatories and a Request for Production of Documents, which together can be called “discovery requests.” These documents are requests for financial and witness information and are served upon the other party once the case has begun. Pursuant to the Illinois Supreme Court Rules, responses to discovery requests are due twenty-eight (28) days after they are served upon the other party. Standard requests usually seek three years’ worth of information. Sometimes, however, information going back more than three years may be relevant, and therefore discoverable in a case. Conversely, where parties have only been married for a very short time, any discovery requests asking for information prior to the date of marriage are likely improper because they ask for irrelevant information.
Due to the comprehensive nature of the discovery process, clients often feel that the request for information and documents going back several years is burdensome and overwhelming. While this feeling is normal, it is important to comply with the discovery requests as thoroughly as possible in order to avoid unnecessary delay in your case. The best strategy for completing standard written discovery requests is to organize all documents that might be relevant to your case (tax returns, paychecks, bank account statements, retirement account statements, credit card statements, receipts for expenses, photos, etc.), to be thorough in answering all questions asked in the requests, and to always provide more information than necessary. Once you provide your responses to your attorney, he/she will determine what should be produced in discovery to the opposing party and what information can be held back.
Failure to comply with discovery can result in substantial penalties to the non-complying party. Oftentimes, when one party fails to comply with the other’s discovery requests in a timely manner, that party may face court-imposed sanctions. This can include a monetary fine, payment of attorney’s fees, incarceration, the striking of pleadings, and/or an order of default against the party who failed to comply with discovery. While these penalties are usually imposed in cases where a party wrongfully and willfully fails to produce complete responses to discovery, clients should always remember to be as thorough as possible in preparing their discovery responses in order to avoid any kind of delay stemming from failure to produce discovery.
If discovery is conducted properly, it can be a great tool for applying pressure to an opponent and obtaining favorable results for a client. At The Law Offices of Jonathan Merel, P.C., we have extensive experience in the discovery process, the strategies behind conducting thorough discovery, how to apply pressure on one’s opponent through discovery, and how to work with our clients in order to produce thorough discovery responses.