What is Discovery

What is Discovery


Attorneys in a divorce case have to learn about the income, assets, and liabilities of their opponent so they can be fully informed when engaging in negotiations and to properly advise their client.  The process by which they gather this information is called discovery.


There are five methods used to collect information in a divorce case.  They are a standard financial affidavit, interrogatories, request for production of documents, subpoenas, and depositions.  Some, or all, of these methods are likely to be used by your attorney, and your spouse’s attorney, at some point in the case.  It is important you know about each and what is expected of you when responding to these documents.  This article will give the reader a basic understanding of each.


Financial Affidavit:  This is a fill-in-the-blank form produced by the Illinois Supreme Court for use in every county in the State.  It requires you to provide your monthly income from all sources, monthly debts to all creditors, and monthly household expenses.  You must list all of your bank accounts, retirement accounts, automobiles, and credit cards.  It also has a section for health insurance.  This is the most basic discovery tool and is completed in almost every divorce or custody case.  When completing the form, remember it requires monthly estimates, not yearly or weekly.  Keep this in mind when providing information about expenses that occur bi-monthly such as water, or yearly such as license plate stickers.  And remember that being paid every other week is not the same as being paid twice per month.  A bi-weekly wage earner will receive 26 paychecks per year while a person paid twice per month will receive 24 paychecks.  The form must be filled out thoroughly and completely.  It will be used by the judge in dividing marital assets.  And it will also be used by your attorney as a reference when drafting other documents.  Finally, you do not want to get caught lying on this form.  That could bring about sanctions and a loss of credibility.


Interrogatories:  These are written questions that must be answered in writing.  The questions may be standard, meaning they are part of a form produced by the Illinois Supreme Court; or they may be customized by your attorney for problems specific to a particular case.  Some questions may be answered with a simple ‘yes’ or ‘no.’  Other questions require you to provide detailed information about things such as your employment history, education, sources of income, loans or gifts you made, and debts that are owed to you.


Request for Production of Documents:  As the name implies, a request for production requires you to provide all of the documents asked for in the list.  Attorneys usually request copies of bank statements, credit card statements, paystubs, and income tax returns.   You will be required to gather these documents and give copies to your attorney who will then pass them on to your spouse’s attorney.  You are required to gather documents in your “possession or control.”  This means that, even if you do not have the documents in your physical possession, you must obtain them from their source, such as a bank or pension fund.  It does not matter if your spouse already has the documents requested, you are still required to gather and turn them over.


Subpoenas:  A subpoena is an order of the court that requires a nonparty to provide documents the attorneys need to prosecute the case.  It is kind of like a request for production of documents served upon a nonparty.  You will probably not have to respond to a subpoena because your spouse’s attorney can get what he needs from you through a request for documents.  Your attorney may use a subpoena to obtain documents from sources outside of you or your spouse’s control.  A subpoena may also be used to obtain records if your attorney thinks your spouse has provided false information or is hiding assets somewhere.  But remember, your spouse’s attorney can use subpoenas for the same reason.


Depositions:  A deposition is when a person is required to appear at an attorney’s office and answer questions under oath with a court reporter present.  You or your spouse can be made to sit for a deposition.  But so can your business associates, paramours, or anybody with information about your finances or assets.


Tips for responding to discovery documents:  Discovery is an important part of the case because it provides the attorneys with valuable information.  But it is also time consuming and can get expensive.  There are things you can do to keep costs at a minimum.


⸱        Be prompt.  Don’t make your attorney call to remind you that you have to respond or turn over documents.  Every time you make your attorney work, he bills you for the effort.


⸱        Be thorough.  Fill in every blank on the financial affidavit, answer each interrogatory entirely, and turn over every document requested.  Missing items means your attorney has to inquire about it and it may become the subject of correspondence between the lawyers or even a motion brought before the judge.  Remember, the more work you create for your attorney, the higher his fees.


⸱        Be organized.  When turning over documents, make sure they are in the order your attorney wants, (i.e. oldest on the bottom, newest on top).  Label each set of documents and present them in the order they are requested by your spouse’s attorney.  Reviewing financial statement is tedious enough, don’t make the job even more arduous by being sloppy.


⸱        Write neatly.  Try to respond in writing using a Word document.  If you must handwrite responses, use neat handwriting.  Don’t make your attorney struggle to figure out if you wrote a 7 or a 9.


⸱        Communicate with your lawyer.  Different attorneys have different preferences.  Your attorney should have instructions on how he wants you to respond.  Follow them precisely.


Discovery can be tedious and time consuming, but a necessary component of the divorce process.  Get ahead of the situation by acting promptly, being thorough, and staying organized.  You’ll make the divorce move along more quickly and save yourself fees in the long run.

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