Discovery

After the initiation of a parentage or divorce case, the typical next step is for each party to engage in the discovery process. The discovery process involves each individual turning over financial documents that show income, assets, and liabilities. The extent of documents that will need to be tendered depends given the type of case and the property of the parties involved. Typically, divorce cases will involve more discovery than a parentage case, since the value of marital assets and debts will need to be determined and divided accordingly between the parties, whereas only income is more relevant in a parentage case to set support and contribution to children’s expenses. The purpose of discovery is to put both parties on an equal playing field by providing the relevant information available to them when negotiating and making decisions for child support, maintenance, division of assets and liabilities, to get to a fair agreement or court order.

The most common discovery document that will usually be required in all types of cases is a Financial Affidavit. Cook County Local Rule 13.3.1 requires that a Financial Affidavit be tendered no later than thirty days after the filing of an appearance. A Financial Affidavit is intended to be a screenshot of someone’s financials in that moment of time. A completed Financial Affidavit must be produced by each party before either will be allowed to pursue further discovery. There are several required supporting documents that may be requested to corroborate the Financial Affidavit as well, such as federal and state income tax returns, pay stubs, bank statements, etc. How difficult or easy this process is, is very much dependent on how cooperative the parties are in providing the requested documentation. Specifically, the parties can go through a formal discovery route or an informal discovery route. Informal discovery requests entail requesting documents from the other party via letters sent pursuant to Illinois Supreme Court Rule 201(k).

So, how does each party request these formal discovery documents? Well, there are several ways for each side to obtain documentation from the other. 

1. Standard Interrogatories. These are written questions that one party sends to the other, and the receiving party is required to answer or object within 28 days of receipt. There are different types of interrogatories, such as marital, custody, relocation, or purely specific issue interrogatories. When issuing interrogatories, there is a standard limit of 30 questions for each party to issue the other and if you wish to exceed this number, you must request permission from the Court. Further, all questions must be relevant to the issues of the case. Parties cannot issue interrogatories as a catch all method of obtaining information not requisite for the case, but only for information that will resolve the pending issues. 

2.    Rule 214 Notice to Produce. Illinois Supreme Court Rule 214 allows either party to request the other to produce specified documentation. The party served with the Notice to Produce has 28 days to produce the requested documentation. Common documents requested under this rule are tax returns, bank statements, paystubs, unemployment, insurance, but there are many possibilities as long as the documents are relevant to the matter at hand. If the party receiving the notice feels some of the requested information is not relevant to the matters of the case, it is their responsibility to raise that objection in a timely manner. 

3. Subpoenas. Subpoenas are another discovery tool that are commonly utilized to obtain the necessary discovery. The most common subpoenas are for financial records, such as bank statements or credit cards. Subpoenas are a useful tool if it is believed that an individual is not forthcoming with their discovery answers to go directly to the source. Subpoenas can also be sent to individuals with information, such as family members, significant others, or financial advisors.

4. Request to Admit Facts or Documents under Rule 216. Either party may serve on the other a written request for the admission of the truth of any specified relevant facts set forth in the request. All parties entitled to notice shall receive a copy of the request for admission. Additionally, either party may serve on the other a written request for admission of the genuineness of any relevant documents described in the request. The request shall be accompanied by copies of the documents in question. There is a limit of 30 requests for admission that a party may serve on another, unless a higher number is agreed to by the parties or good cause is shown and ordered by the court.

Discovery requests are not optional and must be complied with. The response time provided by the discovery rules are especially important. The typical response time to answer discovery requests is 28 days. It is important to start gathering the discovery early so that all documents can be produced on or before the deadline. There are repercussions the Court can impose if discovery is not produced in a timely manner and it will unnecessarily prolong the matter if adequate discovery is not received.

Illinois Supreme Court Rule 219 outlines the consequences of refusal to comply with the rules of discovery. If the court finds that the refusal or failure to comply was without substantial justification, the part can be sanctioned by the court. The most common sanction is the payment of attorney’s fees associated with attempting to obtain the discovery, but it can also be a sanction that bars claims, documents or testimony at trial. In addition to Rule 219 sanctions, another option available to an aggrieved party is that they can file for 508(b) fees in order to obtain attorney’s costs. For more information on 508(b) fees, see our article “Do I have to Pay my own Attorney’s Fees?”

How smoothly the discovery process goes is highly dependent on the parties involved and how willing they are to cooperate with the requests issued by the opposing party. It is in your best interest to comply with discovery in a timely manner, since it will help move the case along and towards a resolution, and can keep attorney’s fees to a minimum. 

The Law Office of Erin M. Wilson LLC is well equipped to assist in the process of discovery and is adamant to follow the necessary procedures and deadlines. Further, The Law Office of Erin M. Wilson LLC will protect you against non-compliance from the other party by filing for 219 sanctions and 508(b) attorney’s fees where necessary. Please contact The Law Office of Erin M. Wilson LLC for a consultation regarding your divorce or parentage case.

NOTICE: This blog is intended solely for informational purposes and should not be construed as providing legal advice. Please feel free to contact us with any questions you may have regarding this blog post.