I'M IN THE MIDDLE OF A DIVORCE AND NOW MY ATTORNEY SAYS WE ARE GOING THROUGH "DISCOVERY?"

Anytime there is a lawsuit filed, there is a period in the process called the discovery phase.  Discovery is basically an opportunity for each side to request information from the other side and from outside third parties.  This can be longer or shorter depending on the case and may involve several different means of discovery.

The first, and most common in a divorce case, is the financial disclosure form.  Kentucky recently adopted statewide financial disclosure forms, but even before that most courts had their own form that was used in each circuit.  Almost every judicial circuit in Illinois has also adopted some form of financial disclosure form by local rule.  These forms provide a snapshot of your financial situation.  Although they can be very tedious to fill out, they usually act as a "cheat sheet" for the court if your case goes to a final hearing.  Therefore, accuracy in completing these forms is very important.

Your attorney or the other side's attorney may also send discovery requests.  These may take the form of interrogatories, which are a list of questions you must answer under oath, requests to admit, which ask you to admit or deny certain facts, and request to produce documents.  It is very important that you not only respond to these requests, but that you do it within the time allowed by the rules of civil procedure.  If you do not, you could be sanctioned by the court or even inadvertently admit to something that is not actually correct and possible harmful to your case.

The attorneys may also subpoena documents from a third party, such as a bank or human resources officer, to secure information related to your case.  If you believe a third party may hold relevant information about your case, such as cell phone records, it is imperative that you discuss that with your attorney as soon as possible.  Many times, a subpoena will have to be served on a third party outside of the state in which your case is filed.  This can take some time to get accomplished and then there is the time it will take that third party to comply with the subpoena.  Be aware that many banks, companies and other institutions can charge for researching and copying records that are subpoenaed.

The final means of discovery that is sometimes used in a divorce or custody case is a deposition.  A deposition is a meeting between an attorney(s) and a witness in which the witness gives sworn testimony usually in the presence of a court reporter who transcribes that testimony.  The testimony may used in place of testimony at trial or could simply be used to get information depending on how the deposition is noticed (i.e. scheduled) and the applicable rules.  While depositions may increase the cost of a case in the short term, they are extremely useful to your attorney in preparing for a trial.

You may not like it; as a matter of fact, I can pretty much guarantee you will not like it.  Nevertheless, discovery is a necessary process that can oftentimes lead to settlement and will definitely make the requesting attorney more prepared for trial.  For more information, please check out our website.