After the initial Petition For Dissolution Of Marriage is filed, the other party is served but before the final trial or prove-up is a long period, called “Discovery” that constitutes the majority of the work in an Illinois divorce. Discovery is the request of and exchange of relevant documents and testimony that may allow the parties to better reach settlement or be used as possible evidence in a final trial.
Both sides in an Illinois divorce will want to determine which of these documents and alleged facts are agreed upon in order to further settlement and simplify trial. To accomplish this, the Illinois Supreme Court Rules provide a tool called the Request For Admission of Fact or Genuineness Of Documents, also known as “Request To Admit.” So, what is a Request To Admit in an Illinois divorce?
Why Issue A Request For Admission of Fact Or Genuineness Of Document In An Illinois Divorce?
It is one thing to exchange all your financial documents with your spouse. It is another thing to know that the documents or the facts that they allege are true. Without agreement, an Illinois divorce court will only consider matters that have been admitted into evidence. In order to admit a document into evidence a party will need to authenticate that document in court using the rules of evidence.
The requirement that document must be authenticated in order for an Illinois court to admit the document into evidence is “satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Ill. R. Evid. 901(a)
The evidence necessary to authenticate a document is pretty simple. Anyone who knows what the document is, personally, can testify to its authenticity. “Testimony of Witness With Knowledge. Testimony that a matter is what it is claimed to be.” Ill. R. Evid. 901(b)(1)
But, some types of documents are overly cumbersome to authenticate because neither of the parties have personal knowledge of the document. For example, bookkeeping entries for a family business or a citation for drinking and driving. For both of these examples, the parties would have to call a bookkeeper or a police officer to their divorce trial in order to enter those documents into evidence.
This is overly cumbersome and the Illinois Supreme Court Rules have a tool the parties can use to simply agree that the documents are authentic, the Request For Admission Of Genuineness of Documents.
“Request for Admission of Genuineness of Document. A party may serve on any other party a written request for admission of the genuineness of any relevant documents described in the request. Copies of the documents shall be served with the request unless copies have already been furnished.” Ill. Sup. Ct. R. 216(b)
Either party can submit the other party with a written request to admit the documents are authenticated by agreement.
The admission of the genuineness of a document is the sign of an efficient and fact-focused counsel. Without an admission of the genuineness of the document, the document must be properly authenticated in order to be entered as an exhibit in trial.
“Without proper authentication and identification of the document, the proponent of the evidence has not provided a proper foundation and the document cannot be admitted into evidence.” Anderson v. Human Rights Comm’n, 314 Ill.App.3d 35, 42, 246 Ill.Dec. 843, 731 N.E.2d 371 (2000)
It may be presumed that the documents your opponent submitted to you must be admitted by them as genuine (I mean, are they giving you fake documents?)…but that is not the case.
In other states, the production of a document may be a tacit agreement to authenticity. However, there is “no Illinois authority laying out a similar rule[. There is] no authority whatsoever for its assertion that documents produced in discovery should be considered authenticated. In the absence of any argument citing such authority, we will not create the rule validating authentication by production in Illinois.” Complete Conference v. Kumon North America, 915 NE 2d 88 – Ill: Appellate Court, 2nd Dist. 2009
Illinois Supreme Court Rule 216 takes it a step further and allows either party to requests of the other party any fact as being true.
“Request for Admission of Fact. A party may serve on any other party a written request for the admission by the latter of the truth of any specified relevant fact set forth in the request. A copy of the request for admission shall be served on all parties entitled to notice.” Ill. Sup. Ct. R. 216(b)
Agreeing to admit to documents and facts makes taking a divorce to trial much easier because there is so much less to prove if the two parties are in agreement as to what is provable.
So, when your opponent files their affidavit of completeness after answering your notice to produce, immediately issue a request for admission of genuineness as to those documents (if you believe the documents are, in fact, authentic).
Abuse Of Requests For Admission of Fact Or Genuineness Of Documents In An Illinois Divorce
Asking for an admission of a relevant fact is much broader and, therefore, more powerful and subject to more abuse.
Any number of semi-relevant facts could be admitted to the detriment of the other party. A party could ask a simple innocuous question like “Our children attended Lady Bugs Daycare in 2019” or a party could get harsh and for admission that the other party is a gambler, addict or adulterer.
If a fact is so important that a party needs a black and white admission or denial, that fact should have been alleged in the Petition For Dissolution Of Marriage and responded to the Response To The Petition For Dissolution Of Marriage.
Furthermore, Request For Admission of Fact Or Genuineness Of Documents in Illinois are like a ticking time bomb…if you don’t answer them, you admit to the documents or facts by default.
“Admission in the Absence of Denial. Each of the matters of fact and the genuineness of each document of which admission is requested is admitted unless, within 28 days after service thereof, the party to whom the request is directed serves upon the party requesting the admission either [a denial or an objection]” (emphasis mine) Ill. Sup. Ct. R. 216(b)
So, if a party doesn’t deny the facts and documents proffered in the Request For Admission of Fact Or Genuineness Of Documents, the party admits to those facts and documents by default.
This deadline and it’s consequences are so serious that the rule requires an issuer of a Request To Admit to “put the following warning in a prominent place on the first page in 12-point or larger boldface type: “WARNING: If you fail to serve the response required by Rule 216 within 28 days after you are served with this document, all the facts set forth in the requests will be deemed true and all the documents described in the requests will be deemed genuine.”” Ill. Sup. Ct. R. 216(g)
Imagine receiving a stack of discovery requests, a blank financial affidavit, 128 interrogatory questions, a Notice To Produce, 3rd party subpoena notices, a deposition request and (tucked between all those documents) a Request For Admission of Fact Or Genuineness Of Documents. By the time you’ve gotten through half of those documents, the 28 days may have already passed and the Request To Admit will stand as an admission to all allegations.
Because the Request For Admission of Fact Or Genuineness Of Documents is so often overlooked and its disregard is so consequential, the rule requires the issuer to “(1) prepare a separate document which contains only the requests and the documents required for genuine document requests; (2) serve this document separate from other documents” Ill. Sup. Ct. R. 216(g)
The Illinois Supreme Court has taken pity on people who have missed the 28 day deadline and allowed for late answers with “good cause.” Vision Point of Sale, Inc. v. Haas, 875 NE 2d 1065 – Ill: Supreme Court 2007
If, God forbid, you miss your 28 day deadline after being served a Request For Admission of Fact Or Genuineness Of Documents, simply remind your opposing party that there is a duty to meet and confer regarding any discovery disputes.
“Reasonable Attempt to Resolve Differences Required. The parties shall facilitate discovery under these rules and shall make reasonable attempts to resolve differences over discovery. Every motion with respect to discovery shall incorporate a statement that counsel responsible for trial of the case after personal consultation and reasonable attempts to resolve differences have been unable to reach an accord or that opposing counsel made himself or herself unavailable for personal consultation or was unreasonable in attempts to resolve differences.” Ill. Sup. Ct. R. 201(k)
Your opponent cannot file a motion to deem the requested facts and documents admitted without conferring with you to reasonably resolve your differences. This will almost always mean giving you more time to answer the Request To Admit.
Refusal To Admit To Facts That Are True In A Request To Admit Facts
It may be tempting to just deny everything in a Request For Admission of Fact Or Genuineness Of Documents and force everyone to prove everything in court. This strategy, however, is not allowed.
“If good faith requires that a party deny only a part, or requires qualification, of a matter of which an admission is requested, the party shall specify so much of it as is true and deny only the remainder.” Ill. Sup. Ct. R. 216(c)
The receiver of a request to admit may be tempted to neither admit nor deny the facts. Instead, they may try to equivocate and say “Neither admit nor deny. Investigation continues.”
When a party “[does] not deny or object to the [the other party’s] requests,…it [is] incumbent upon [the answering party] to set forth in detail the reasons it could not admit or deny the matters.” Liepelt v. Norfolk & Western Ry. Co., 378 NE 2d 1232 – Ill: Appellate Court, 1st Dist. 1978
Whatever admissions or lack thereof are made, they must be sworn to.
“[Failure] to submit sworn statements specifically denying those matters as required by Rule 216…[will result in the] trial court rul[ing] that the allegations were deemed admitted.” Hubeny v. Chairse, 713 NE 2d 222 – Ill: Appellate Court, 2nd Dist. 1999 (emphasis mine)
Alternatively, filing a sworn statement which denies demonstrably true facts can result in sanctions.
“The signature of an attorney or party constitutes a certificate by him that he has read the…document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact…If a pleading, motion, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction” Ill. Sup. Ct. R. 137
“If a party, after being served with a request to admit the genuineness of any documents or the truth of any matters of fact, serves a sworn denial thereof, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter of fact, the requesting party may apply to the court for an order requiring the other party to pay the requesting party the reasonable expenses incurred in making the proof, including reasonable attorney’s fees.” Ill. Sup. Ct. R. 219(b)
In fact, sanctions for fees are mandatory if an inappropriate denial is made on an answer to a request to admit.
“Unless the court finds that there were good reasons for the denial or that the admissions sought were of no substantial importance, the order shall be made.” Ill. Sup. Ct. R. 219 (emphasis mine)
Never issue a blanket denial if possible. You cannot get in trouble if you issue a “qualified denial” (a denial with a reasonable explanation)
“Where facts requested to be admitted are properly admitted or denied with a qualified answer, costs and fees will not be assessed against the party who refused to admit.” In re Marriage of Borowczyk, 397 NE 2d 71 – Ill: Appellate Court, 1st Dist. 1979
The Limits Of A Request For Admission of Fact Or Genuineness Of Documents In An Illinois Divorce
A maximum of 30 documents or facts can be requested in an Illinois Request For Admission of Fact Or Genuineness Of Documents.
“Number of Requests. The maximum number of requests for admission a party may serve on another party is 30, unless a higher number is agreed to by the parties or ordered by the court for good cause shown. If a request has subparts, each subpart counts as a separate request.” Ill. Sup. Ct. R. 216(f)
Public records appear to be an exception to this 30 item limit per the rule.
“If any public records are to be used as evidence, the party intending to use them may prepare a copy of them insofar as they are to be used, and may seasonably present the copy to the adverse party by notice in writing, and the copy shall thereupon be admissible in evidence as admitted facts in the case if otherwise admissible” Ill. Sup. Ct. R. 216(d)
This makes sense as public records are de facto true and it is a massive hassle to bring in a policeman or a county clerk to authenticate a public record like an arrest or a separate court case.
Furthermore, the nature of the questions must be exclusively about facts. It will be tempting to ask questions that are so pointed that they are essentially asking for a legal conclusion, ex: “did you waste the marital assets?” “[R]equest to admit that [seeks] a legal conclusion [will therefore not be] an admission” Moy v. Ng, 371 Ill. App. 3d 957, 961 (Ill. App. Ct. 2007)
In my experience, attorneys who practice family law in Illinois hardly ever issue Requests For Admission of Fact Or Genuineness Of Documents. The outcome of a divorce almost never hinges on a particular fact or document. So, the Request For Admission of Fact Or Genuineness Of Documents doesn’t have the same power in a divorce case that it would in other civil cases.
Admitting Evidence After A Request To Admit Has Been Issued
The plucky practitioner will be tempted to not only submit their requests to admit and respective answers into evidence but ALSO actually present the evidence that was admitted. DON’T DO THAT.
“Where facts have been admitted pursuant to a Rule 216 request [to admit] and the party presents evidence at trial to prove those facts, the admissions are waived and the party must rely on the strength of the evidence adduced at trial.” Magee v. Walbro, Inc., 525 NE 2d 975 – Ill: Appellate Court, 1st Dist. 1988
Courts do not want to balance what was admitted with what was presented. What if the two sets of evidence do not match up perfectly? Therefore, the actual evidence presented will be considered in lieu of the admission of the request to admit.
If you’re considering issuing a Request To Admit or have received a Request To Admit in your Illinois divorce case, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.