Discovery in an Illinois divorce is the process by which parties exchange relevant information under their control to the other party in the divorce. Usually, this discovery is the financial affidavit and the supporting documents plus anything asked for in a Notice To Produce or answers to Matrimonial Interrogatories.
But, divorces in Illinois take a long time. You could give paystubs from 2018 when your divorce started but when the trial finally comes around in 2020, your salary could have completely changed.
So, how do you accommodate these changes in your life and provide the opposing party in your Illinois divorce with updated documents?
The rules on updating the opposing party with updated documents in Illinois are pretty straightforward.
For interrogatory answers, Illinois Supreme Court Rule 213(i) imposes upon a party “a duty to seasonably supplement or amend any prior answer or response when new or additional information subsequently becomes known to that party.”
So, a party should review their interrogatory answers on some kind of a regular basis to see if there is any new information they should voluntarily provide the opposing party. I have been practicing family law in Illinois for fifteen years and I have never seen anyone update an interrogatory. I would be very impressed if that ever happened.
Notices To Produce ask for documents from the opposing party. It makes a lot more sense that produced financial documents would need to be regularly updated.
Illinois Supreme Court Rule 214(d) says “A party has a duty to seasonably supplement any prior response to the extent of documents, objects or tangible things which subsequently come into that party’s possession or control or become known to that party.”
Now updating financial documents actually happens. You have to update your paystubs, your tax returns, your bank statements. Typically, the opposing counsel will politely ask you to update these with a reference to rule 214(d) but you should be forwarding your updated documents to the other party independently (although this happens rarely)
What does get updated often without reminder is the financial affidavit. This is because the financial affidavit is a piece of independent evidence that can be used in a summary hearing for temporary support and financial issues. If the financial affidavit is out of date, then the financial affidavit is wrong and there are grave consequences for that.
“If a party intentionally or recklessly files an inaccurate or misleading financial affidavit, the court shall impose significant penalties and sanctions including, but not limited to, costs and attorney’s fees” 750 ILCS 5/501(a)(1)
What Happens If You Fail To Update Your Discovery in An Illinois Divorce?
In the case of a failure to update a financial affidavit, you could be sanctioned as described above.
If you don’t update your financial affidavit in Cook County you can’t get further relief. “When further relief is sought from the court and a material change of circumstances has occurred, an updated completed “Financial Affidavit” must be served on the other party no less than seven (7) days prior to any hearing.” Cook County Court Rules 13.3.1(a)
More commonly, the opposing counsel can file a motion to bar evidence regarding any discovery that has not been updated or tendered past the official date marked as “close of discovery.”
Every order that schedules a trial includes a date when discovery closes. That means, no new information that remains untendered to the other side can be used as evidence in the trial. This includes information that was previously tendered but the updated version has not yet been tendered.
If you planned on using updated discovery post-close-of-discovery date at trial…too bad. The updated evidence will be barred from the trial. You had a duty to tender it earlier before discovery closed.
Hopefully, the opposing counsel and your divorce lawyer have a good relationship where they can weigh the equities and understand a delay to the extent that it doesn’t overtly hurt their own client. If the opposing counsel agrees, the close of discovery can be extended by agreement. After all, there’s probably some stuff the opposing counsel forgot to update as well now that you’re bringing it up.
Of course, this only helps the party filing the motion to bar evidence if the new evidence hurts them. If the new updated discovery would help them, then you need a motion for a continuance to get that updated evidence on the record…even though you didn’t ask for it.
The opposing party can ask for and get a continuance on the trial date so that the documents can, in fact, be seasonably updated. White v. Garlock Sealing Technologies, LLC, 869 N.E.2d 244 (I1. App. Ct. 2007)
The judge is not going to be happy with either party that the discovery wasn’t seasonably updated. But, the judge will try to do the right thing regarding discovery. The judge needs to balance seeing all the evidence with getting the case over. “It is within the trial court’s discretion to weigh the equities and make the final determination with respect to discovery orders.” Yassin v. Certified Grocers of Illinois, Inc., 502 N.E.2d 315, 326-27 (111. App. Ct. 1986)
Your divorce lawyer should have strict procedures for updating discovery in your divorce case…especially before discovery closes. I know my family law office has those procedures in place. If you’d like to know more about arcane civil procedure rules that affect Illinois divorce, contact my office for a free consultation with an experienced Chicago divorce lawyer.