Discovery Options


When you are going through a court process, your case will end either by (1) an agreement or by (2) the judge making a deciding. To make an educated agreement, you must have the necessary information. Without information, you are simply guessing. Discovery is where you can find out as much or as little information as you need. Not every case needs discovery. Before you assume that you do or do not need discovery, it is important that you understand what is at stake for your situation.  Unless you are certain that you know everything, it is important that you speak with your attorney to customize your strategy. Read on to understand the most common discovery tools used in a case like yours.

Financial Affidavit:

In nearly all divorce cases, you must complete a financial affidavit. It is a great starting point because it provides a summary of income, expenses, assets, and liabilities.

After reviewing the other sides financial affidavit, you should work with your attorney to determine whether you should serve additional discovery. There are pros and cons of issuing more discovery. If you already know what the other side has and their financial affidavit is consistent with what you know, the additional costs of discovery may not be best for you. However, if their financial affidavit is questionable or you know you need more information, the investment in discovery is probably right for you. The most common forms of additional discovery are as follows:

Interrogatories: These are written questions directed to the opposing party seeking information about facts relevant to the case. The other side must answer under oath and in writing.  You may ask 30 total questions, or you may use “standard” interrogatories in divorce cases, which the Illinois Supreme Court approved.

Notice to Produce (AKA Request for Production of Documents): You can ask the other party to produce documents for your review. For example, in many divorce cases you could request three to five years of bank statements; credit card statements; business records; retirement statements; and/or other documents showing other assets/liabilities. Reviewing documents is important to understand the history before things went bad in the marriage so that you can make an educated decision on what you want to seek in the outcome. Reviewing documents can also identify dissipation, which is spending marital funds on a non-marital purpose (e.g., having a new significant other or a sudden gambling addiction).

Subpoena: If a Notice to Produce cannot provide you what you need, or perhaps you do not trust that they will comply properly, you can send a subpoena directly to a third party. A subpoena may require the production of documents, an in-person deposition, or both. This is a very useful tool in the discovery tool belt because a properly executed subpoena can provide much needed evidence in court without requiring live testimony. Work with your attorney to best understand how it could work for you.

Deposition: A deposition is when an attorney asks questions of an individual to obtain information under oath while a court reporter records the answers. Anyone who could provide relevant information may be deposed. A deposition serves three primary purposes: (1) It will “lock” in testimony, meaning that the person testifying in a deposition must answer consistently during trial or risk their credibility with the judge; (2) Your Attorney can assess how the deponent is as a witness (e.g., are they combative or will they be a good witness in trial?); and (3) it may lead to other evidence to explore.

It is so important that you get customized help for your specific situation. Do not read this and assume you know the best options for your goals. It is important to establish your goals. Then have professionals guide you on the path so that you achieve your opportunity for happiness.

If you want to learn more about discovery, check out our 4-part video series on YouTube.