Discovery is the legal procedure by which you are entitled to find our the facts and figures. Formal discovery will help you find out about your spouse’s income and assets and their answers have to be made under oath. Although discovery can be time consuming and expensive, discovery is very important, especially if you have limited knowledge of your and your spouse’s income and property.
My spouse handled all of the family finances. I know virtually nothing about her/his income, what we are worth etc. Will my lawyer and I learn these facts?
Yes, probably. The goal of the law is that you should know all of the facts and figures involved before you make a settlement decision and before the case goes to trial.
Your lawyer will learn the facts and figures through a procedure known as “discovery.” This allows your lawyer to have issued discovery subpoenas against employers, banks etc. and send interrogatories, have depositions taken and demand the production of documents.
But just like all bank robbers are not caught, some spouses may get away with hiding assets and income. In most cases, however, a paper trail is left and is discovered.
Can discovery facts and figures be done informally without the use of subpoenas and the like?
Yes. If the parties are cooperating, then informal (not court required) requests are made back and forth for the supplying of information and documents. Informal discovery is less expensive than formal discovery.
What is the nature of the facts and figures sought by discovery?
- Verification of income.
- Learn how money was spent through bank and credit card documents.
- Discovery related to “social” activities by obtaining records of telephone and cell phone charges and discoverying records of emails.
- Business records.
- Obtain copies of financial statements that were submitted in connection with a loan application.
- Medical and psychiatric records.
- Purchase and sale of stocks.
- Retirement plan data.
Who is included in the discovery plan process?
Discovery can be obtained by subpoena from anyone who knows relevant facts which are important to your case.
Our case is very simple. Can we settle without discovery?
Yes. The simpler the case the less discovery is needed and sometimes the case is so simple that no discovery is needed.
What is a discovery subpoena?
A subpoena is issued by the clerk of the court. Disobedience of a subpoena can lead to a finding of contempt and punishment for contempt by imprisonment.
What are written interrogatories?
Interrogatories are a list of written questions that are submitted to the other side and must be answered in writing by the other side under oath. In Illinois there are standard interrogatories in divorce cases. These standard interrogatories are published by the Illinois Supreme Court and the answers to the interrogatories should give relatively comprehensive information for the usual divorce case.
If you would like to see a set of these interrogatories they may be found in Supreme Court Rule 213. Rules of the Supreme Court can be found in law libraries. The McHenry County Courthouse (Government Center) has a law library.
To prove my case I need documents that I do not have. Can I obtain these documents through discovery?
Yes. If your spouse has the documents (for example canceled checks) your lawyer can serve a production demand on your spouse (your spouse’s attorney) and the documents must be produced within 30 days. If the documents are not in your spouse’s possession, but in the possession of a third party, a discovery subpoena can be issued for the production of the documents.
I remember hearing about depositions in notorious court proceedings. Are depositions taken in divorce cases?
Yes. Depositions are fairly routinely taken in divorce proceedings. Often a combination of document production and interrogatories does not produce all the information required and there must be a face-to-face session in which your lawyer asks questions of your spouse, or another person who is a potential witness. This is discovery because it is done before trial.
Depositions are usually taken in the lawyer’s office. In a deposition a lawyer asks questions and the witness, who is placed under oath, must answer the questions. A court reporter is present and transcribes the proceedings in shorthand. You must answer the questions unless your lawyer instructs you not to.
The side benefit of a deposition is that it may help to evaluate your spouse as a witness and it may be your first experience as a witness.
Is discovery used in a child custody case?
Yes. Typically depositions of the parties will usually be taken in a custody case. Also if “experts,” such as psychologists, are going to testify at the trial, or if there has been a custody evaluation, depositions of those experts may be taken.