Posted on April 5, 2022

How Far Back Does Discovery Go In An Illinois Divorce?

Answering discovery in an Illinois divorce is not fun. No one keeps track of every detail of their life so they can later turn over those ancient documents to someone who is suing them. The older the document, the less likely it is that you’ll have control or possession of that document. There’s got to be some kind of time limit on what an Illinois divorce litigant has to turn over. So, how far back does discovery go in an Illinois divorce?

How far back discovery goes depends on the kind of discovery one is asking for.

How Far Back Does A Financial Affidavit Have To Go In An Illinois Divorce?

An Illinois Financial Affidavit captures a moment in time. Specifically, this month for the income and expenses and the date of signature for the assets and debts.

The supporting documents don’t even specify which time frame they should be from.

“The financial affidavit shall be supported by documentary evidence including, but not limited to, income tax returns, pay stubs, and banking statements.” 750 ILCS 5/501(a)(1)

Local county rules are a little more specific about the time frame for discovery documents.

“In all proceedings where a…Financial Affidavit is required, each party shall serve upon the other party, together with the Financial Affidavit, copies of the party’s last two (2) calendar years’ filed individual, partnership and corporate federal and state income tax returns, the most recent pay stub showing year-to-date earnings and deductions therefrom, or if the year-to-date information is not provided by the employer, the five (5) most recent pay stubs, and records of any year-to-date additional income and compensation (paid and deferred) not reflected in the pay stubs. Where a party has not yet filed a federal or state income tax return for the prior calendar year, the last filed year’s return shall be served upon the opposing parties as well as all W-2’s, 1099’s and K-1’s received necessary for preparation of the prior year’s return.” Cook County Court Rule 13.3.2(a)

How Far Back Does An Interrogatory Go In An Illinois Divorce

Interrogatories can only have 30 questions in Illinois.

“[A] party shall not serve more than 30 interrogatories, including sub-parts” Ill. Sup. Ct. R. 213(c)

Expect an objection to interrogatories that are overly broad and ask one question…but for 20 years. Clearly, each year could be interpreted as a subpart.

For divorces, the 30-question limit is removed in place of using the standard Matrimonial Interrogatories as promulgated by the Illinois Supreme Court.

“The Supreme Court, by administrative order, may approve standard forms of interrogatories for different classes of cases” Ill. Sup. Ct. R. 213(j)

The Illinois Matrimonial Interrogatories have a limit of 3 years for all documents.

How Far Back Does A Notice To Produce Go In An Illinois Divorce?

Most of the heavy lifting in an Illinois divorce is done by the Notice To Produce.

In Illinois, a Notice To Produce can ask for ANYTHING.

“Any party may by written request direct any other party to produce for inspection, copying, reproduction photographing, testing or sampling specified documents, including electronically stored information as defined under 201 (b)(4), objects or tangible things…or to disclose information calculated to lead to the discovery of the whereabouts of any of these items, whenever the nature, contents, or condition of such documents, objects, tangible things, or real estate is relevant to the subject matter of the action. The request shall specify a reasonable time” Ill. Sup. Ct. R. 214(a)

A Notice To Produce can request documents from the entire course of the marriage…or even before.

The only limitation on a Notice To Produce’s time frame for documents are the reasonable objections that can be raised to the Notice To Produce.

Ancient document production can be objected to as irrelevant.

“Discovery should be denied where there is insufficient evidence that the requested discovery is relevant.” Rokeby-Johnson v. Derek Bryant Ins. Brokers, 230 Ill. App. 3d 308, 317 (Ill. App. Ct. 1992)

One thing that is definitely irrelevant as it ages is evidence of dissipation of assets.

“[N]o dissipation shall be deemed to have occurred prior to 3 years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to 5 years before the filing of the petition for dissolution of marriage” 750 ILCS 5/503(d)(2)

Almost anything remotely related to your life will be related to your divorce…and, thus, be relevant. The question is whether it will be sufficiently relevant to overcome the burden of producing the documents.

“A party may object to a request on the basis that the burden or expense of producing the requested materials would be disproportionate to the likely benefit, in light of the factors set out in Rule 201(c)(3).” Ill. Sup. Ct. R. 214(c)

You are required to turn over requested documents in your possession or control.

“A party served with the written request shall (1) identify all materials in the party’s possession responsive to the request and copy or provide reasonable opportunity for copying or inspections.”  Ill. Sup. Ct. R. 214

The older a document is, the less likely you are to still have the document. Additionally, third parties (such as banks, telephone companies, etc.) are less likely to keep old records. While you can be expected to fetch documents that a third party has, you are not expected to gather documents third parties no longer have due to internal policies on aging records.

“A party may be required to produce documents which are in the possession of third parties, where he has custody or control of those documents.” Central Nat’l Bank v. Baime, 112 Ill. App. 3d 664, 669 (Ill. App. Ct. 1982)

If you no longer have the document in your possession or control due to age (or whatever) you can simply say so in their Affidavit of Completeness.

“The producing party shall furnish an affidavit stating whether the production is complete in accordance with the request.”  Ill. Sup. Ct. R. 214(c)

If the requesting party doesn’t believe that the document no longer exists or that you can’t request it again, prepare to be subject to a deposition about where you last saw the document.

“If the party claims that the item is not in his or her possession or control or that he or she does not have information calculated to lead to the discovery of its whereabouts, the party may be ordered to submit to examination in open court or by deposition regarding such claim.” Ill. Sup. Ct. R. 214(c)

You will not have too much success saying, “This is too old. I’m not bothering to look for it or turn it over.” You will simply be subject to a Motion To Compel Production Of Discovery if a court deems that you have possession or control of whatever the document is.

Requesting Old Records Rarely Matters In An Illinois Divorce.

A good divorce lawyer is unlikely to ask for old documents from the opposing side. Child support and maintenance issues are based on the incomes of the parties TODAY. The marital assets and debts of the parties are divided using the values of the trial date or some other reasonable date (which would always be recent).

“[I]n determining the value of the marital and non-marital property for purposes of dividing the property, has the discretion to use the date of the trial or such other date as agreed upon by the parties, or ordered by the court within its discretion, for purposes of determining the value of assets or property.” 750 ILCS 5/503(f)

The only reasonable request for old documents would be to prove that an item was non-marital.

“The court shall make specific factual findings as to its classification of assets as marital or non-marital property, values, and other factual findings supporting its property award.” 750 ILCS 5/503

[T]he following…is known as “non-marital property”:

property acquired before the marriage” 750 ILCS 5/503

The non-marital property MUST remain after the Judgment For Dissolution Of Marriage with the party who brought the property into the marriage.

“[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d)

It makes sense that you would want to prove a property of yours was non-marital. But, why would you ever issue discovery to prove that a property of your spouse’s was non-marital…unless it was debt?

If you feel like replying to an over-expansive Notice To Produce with era-appropriate hieroglyphics, contact my Chicago, Illinois family law firm to learn how to quickly comply or properly object to a request for things you probably have not seen in years.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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