Waiving discovery in an Illinois divorce

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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Illinois Divorce With No Discovery

Waiving discovery in an Illinois divorce

Being married to someone means you know A LOT about them. You may need to know more about them, however, in order to adequately divide your assets and debts, determine support and establish an appropriate parenting schedule. The request and exchange of such information during the Illinois divorce process is called discovery.

“The purposes of litigation are best served when each party knows as much about the controversy as is reasonably practicable.” Mistler v. Mancini, 111 Ill. App. 3d 228, 231 (Ill. App. Ct. 1982)

“Information is obtainable as provided in these rules through any of the following discovery methods: depositions upon oral examination or written questions, written interrogatories to parties, discovery of documents, objects or tangible things, inspection of real estate, requests to admit and physical and mental examination of persons.”  Ill. Sup. Ct. R. 201(a)

Discovery is cumbersome, intrusive and expensive. Parties’ to a divorce may be satisfied with their own knowledge of the other party’s assets, debts, income, and medical history to not need any of that information for verification or to gather evidence for trial.

Can An Illinois divorce Be Done With No Discovery Exchanged?

Local court rules require that the parties fill out and exchange financial affidavits at the very least.

“(a) Pre-Judgment Disclosure –In all pre-judgment proceedings in which a party is seeking division of the marital estate, to establish, modify or enforce an order for maintenance, child support, or educational expenses pursuant to Section 513 of the Illinois Marriage and Dissolution of Marriage Act, support for a non-minor child with a disability pursuant to Section 513.5 of the Illinois Marriage and Dissolution of Marriage Act, disposition of property in a civil union, retroactive child support in parentage matters, or  attorney’s fees and costs against the other party, each party shall serve a completed  affidavit of incomes, expenses, debts, and assets  (“Financial Affidavit”) upon the other party on forms approved by the court. The service of the “Financial Affidavit” shall be as follows:

(a)The Petitioner shall serve the completed  “Financial Affidavit” not later than thirty (30) days after service of the initial pleading and the Respondent shall serve the completed “Financial Affidavit” not later than thirty (30) days after the filing of the Responding party’s appearance” Cook County Court Rule 13.1(a)

The mandatory exchange of the financial affidavits are not monitored by the court. In fact, it is impermissible to file the exchanged financial affidavits with the court.

“No discovery may be filed with the clerk of the circuit court except by order of court. Local rules shall not require the filing of discovery. Any party serving discovery shall file a certificate of service of discovery document.” Ill. Sup. Ct. R. 201(m)

So, if the parties are agreed to not exchange a financial affidavit…the requirement that financial affidavits be exchanged cannot be enforced.

All other forms of discovery are based on the request of the other party. So, no request for discovery equals no discovery.

In conclusion, divorce can be done with no discovery in Illinois if the parties agree that no discovery will be requested from either party.

Divorce with no discovery is a terrible idea for all involved. The party that didn’t ask for discovery will always wonder if they got a fair deal. The party that didn’t tender discovery will subject themselves to a possible motion to vacate in the future should the other party have second thoughts.

Vacating A Divorce With No Discovery

A lack of discovery by either party can be a basis to undo an Illinois divorce via a motion to vacate.

A motion to vacate based on lack of discovery means that there was evidence out there that you could have used…had you known about it. But, you can’t vacate a judgment for dissolution of marriage if you COULD have asked for it.

“Specifically, to set aside a judgment based on newly discovered evidence, the evidence must be such as could not reasonably have been discovered at the time of or prior to the entry of the judgment.” Cavitt v. Repel, Docket No. 1-13-3382, 13 (Ill. App. Ct. 2015)

The failure to ask for discovery is a failure to have exercised due diligence.

“To be entitled to relief under section 2-1401, the petitioner must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious claim or defense; (2) due diligence in presenting that claim or defense in the original action; and (3) due diligence in presenting the section 2-1401 petition.” Cavitt v. Repel, Docket No. 1-13-3382, 13 (Ill. App. Ct. 2015)

But, not asking your spouse for everything under the sun is not a failure to exercise due diligence.

A “decision to forgo formal discovery is not a per se lack of diligence.” In re Marriage of Brubaker 2022 IL App (2d) 200160

If the absence of the relevant discoverable material was due to the other party denying the evidence’s existence in any form, that may be appear to be a fraudulent concealment of evidence which would be an exception to the requirement that the vacating party have acted with due diligence.

“[F]raudulent concealment of evidence is a factor in determining whether a section 2-1401 petitioner exercised due diligence in discovering and presenting the ground for relief… “when an opponent suppresses information, as to prevent the inquirer from realizing what has occurred, the failure to discover the information is the result of the opponent’s fault and not the inquirer’s negligence.” In re Marriage of Travlos, 218 Ill. App. 3d 1030, 1037 (1991)

Due diligence is a relative concept to be judged individually within each case.

“Due diligence is judged by the reasonableness of a petitioner’s conduct under the circumstances.” In re Marriage of Goldsmith, 2011 IL App (1st) 093448

Failure to disclose must be accompanied by some act or failure to act. Stating out loud, “I don’t have anything in that safe” when that is a lie or forgetting to include an item on their financial affidavit may qualify as fraud by non-disclosure.

A petitioner alleging fraud by non-disclosure “must show by clear and convincing evidence that [the respondent] intentionally misstated or concealed a material fact which he had a duty to disclose and that [the petitioner] detrimentally relied upon [the respondent’s] statement or conduct” In re Marriage of Broday, 256 Ill. App. 3d 699, 703 (1993)

Admittedly, proving fraud by non-disclosure would be an uphill battle if the parties agreed not to even exchange the most basic financial affidavits. But, the party with the secret assets probably should have known better than to agree to waive discovery completely and thereby expose themselves to a motion to vacate.

The courts do not want to provide any incentive for “litigants to be less than forthcoming in their disclosure of assets whenever divorcing parties opt to forgo formal discovery” In re Marriage of Brubaker 2022 IL App (2d) 200160

Normally, motions to vacate can only be filed within 2 years of the judgment’s entry. Vacating a judgment for dissolution due to fraudulent concealment has no statute of limitations.

“[T]he petition [to vacate] must be filed not later than 2 years after the entry of the order or judgment. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.” 735 ILCS 5/2-1401(c)

Unless you want to look over your shoulder your whole life, you should engage in formal discovery and disclose all of your assets and debts.

Limiting Discovery In An Illinois Divorce

If your fear is that discovery will simply get out of control if requested, the option to object to discovery still remains.

Irrelevant discovery requests can be objected to.

“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)

Even if the discovery is relevant, the court may find that the production of the discovery is simply too much of a hassle to be bothered with.

“Even after determining the pretrial discovery request is relevant, however, the circuit court must still balance the needs of truth with the burdens of production through the entry of any protective order appropriate to the action.” Brostron v. Warmann, 190 Ill. App. 3d 87, 91 (Ill. App. Ct. 1989)

More commonly, excessive discovery is usually just asking for the same thing over and over again. Which can be objected to as duplicative.

“Duplication of discovery methods to obtain the same information and discovery requests that are disproportionate in terms of burden or expense should be avoided.” Ill. Sup. Ct. R. 201(a)

If you are trying to get divorced with minimal expense, hassle and headache of discovery…be careful. It is definitely possible to fully disclose assets in a divorce without providing a million documents in order to properly verify those assets. Contact my Chicago, Illinois family law firm to learn more about from an experienced Illinois divorce attorney.