Divorce and Family Law
Discovery in a Divorce Case
After the respondent spouse files their Appearance and Answer to the Petition for Dissolution of Marriage, the parties are free to conduct discovery. Discovery is a process controlled by the Illinois Rules of Court, which is designed to compel the exchange of information. That information typically consists of documentation relating to medical histories, financial affairs, names of witnesses, and lists of exhibits, all of which would be utilized at the time of trial. Again, though, the exchange of this information is often required even before the parties can pursue, or intelligently pursue temporary orders. Then, as a litigant who wishes to move forward with the divorce proceeding, you may be faced with additional delays that are justifiably provided for in the Rules of Court. Keep in mind that attorneys, as a rule, must pursue certain basic discovery in order to protect their client’s interests.
Strategically, as a litigant responding to discovery, the more organized you remain and the quicker you respond to the opposing party’s discovery demands the better your position will be to aggressively demand responses from the opposing party. In short, do not wait until the 28th day to consider your responses to outstanding discovery. The work in preparing answers to written discovery does not end when you provide the materials to your attorney. Your attorney must then review your answers and formally prepare the response. If you delay long enough, the opposing party will be in a position to file a motion to compel your answer and /or a motion for sanctions against you for failing to respond to outstanding discovery. That process will cause further delays in your litigation, increase attorneys’ fees, and potentially place you in a position of disadvantage.
The typical methods of discovery include:
Interrogatories are written questions, which range from a wide variety of subject matters including finance, the identification of witnesses, exhibits and your positions concerning custody and visitation of children. From the date of service of Interrogatories, the responding party has 28 days to submit their answers.
Requests to Produce Documents and/or other Tangible Things
During the course of your litigation, you may also serve upon the opposing party Requests to Produce documents and/or other tangible things. Again 28 days is provided to gather the requested records or things and serve responses to that discovery device.
Request to Admit Facts and/or the Authenticity of Documents
Another tool often utilized by attorneys is called a Request to Admit Facts and/or the Authenticity of Documents. This device may request that you admit or deny the authenticity of a letter, a deed, or some other tangible document. The Request to Admit may also ask you to admit or deny the accuracy of specific facts such as “On or about May 1, 2000 Jane Doe signed a Waiver of Homestead for the residence located at 2101 North Circle Drive.” If you fail to respond timely to a Request to Admit, all of the facts set forth in the request will be deemed admitted. The consequence of that failure could be devastating to your case. Therefore, timely responses are essential.
Subpoena Duces Tecum and Subpoena to Appear
In the event a party to the divorce proceeding denies having access to records, or if the other party does not believe records are being fully disclosed, a subpoena duces tecum ( for records only) can be issued and served upon any third party believed to maintain those record. The subpoena is issued by the clerk of court, and served upon a non-party by the Sheriff of the county where that person or entity resides.
If the subpoenaed party fails to produce the demanded records as provided by the subpoena, they are then subject to being held in contempt of court. Obviously, enforcing a subpoena creates more litigation expense and delay.
A subpoena can also be issued and served upon a non-party to the divorce for the purpose of compelling their appearance for deposition or appearance for court hearings. If the subpoenaed person ignores the subpoena, the Court upon request can issue an order directing the Sheriff to seize that person and bring him/her to court. Other Sanctions may also be imposed such as a finding of contempt, monetary sanction or incarceration.
The final most commonly used method of discovery is called Deposition. Under Illinois law, two (2) types of deposition may be taken. The first is a Discovery Deposition that is designed to obtain information regarding a party’s personal affairs and positions concerning the issues involved in the divorce. Although under certain circumstances a discovery deposition may be used during the course of a trial, its purpose is not intended as substitute testimony. Rather, the discovery deposition is designed to establish a litigant’s position regarding the facts involved in any particular case and holding that litigant to those facts and those positions during trial. If a litigant changes their position during the course of a trial and those changes are inconsistent with the deposition testimony previously given, the opposing party will be in a position to impeach that witness. Therefore, proper preparation for depositions is necessary. Again taking into account the litigants’ schedules and the attorneys’ schedules, it could take months to organize any particular deposition. Further, prior to taking a party’s deposition, the opposing party may first require the receipt of answers to outstanding written discovery. Therefore, the possibilities for further delays are endless.
The second type of deposition provided for under Illinois law is an Evidentiary Deposition. That process requires the parties to prepare questions and receive answers that comply with the Illinois Rules of Evidence, unlike a Discovery Deposition where the rules of evidence do not apply and the strict procedures do not have to be accommodated. Typically, the Evidentiary Deposition is utilized for the purpose of replacement trial testimony. Often, it is more economical to take the Evidentiary Deposition of a doctor or mental health provider rather than bringing that individual into court and incurring the expenses associated with the delays, which routinely occur during the course of a trial, or hearing. Evidentiary Depositions may be noticed for any party or third party that is perceived to provide testimony during the course of a trial. If out-of-state witnesses are involved in a particular case, it tends to offer a valuable alternative to bringing live witnesses into court.
During the course of divorce litigation, depending upon the issues involved, whether they are financial or relating to children, discovery abuses often occur and create serious delay and expense. However, if a court is made aware of ongoing bad faith abuses of discovery, the abusing party could be subject to devastating sanctions.