Posted on January 26, 2023

What If My Subpoena Is Not Answered In My Illinois Divorce?

When a marriage breaks down, there is always a loss of trust. Verifying the details of your spouse’s life requires a full disclosure from your spouse…and verification of the details from third parties.

In an Illinois court of law, verification of facts from third parties is done via subpoena.

A subpoena is “a writ or order commanding a person to appear before a court or other tribunal, subject to a penalty for failing to comply.” Black’s Law Dictionary (11th ed. 2019)

Most subpoenas will substitute a person actually coming to court for merely providing the records requested of them.

In Illinois, attorneys can issue subpoenas to anyone for anything (within reason) under the power of the court

“An attorney admitted to practice in the State of Illinois, as an officer of the court, may also issue subpoenas on behalf of the court for witnesses and to counties in a pending action.” 735 ILCS 5/2-1101

“[S]ubpoenas may be issued by an attorney admitted to practice in the State of Illinois who is currently counsel of record in the pending action. The subpoena may command the person to whom it is directed to produce documents or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted under these rules” Ill. Sup. Ct. R. 204(a)(1)

Once the target of the subpoena has the received notice of the subpoena, they must comply within a reasonable time frame.

Failure to comply with a subpoena’s request can result in the party that issued the subpoena requesting a motion to compel.

“If a party or other deponent refuses…a request for the production of documents…the party serving the request may on like notice move for an order compelling an answer or compliance with the request.” Ill. Sup. Ct. R. 219(a)

A third-party who received a subpoena and has not responded to the subpoena can be ordered to produce under rule 219 even though they are not a party to the case. But, if you really want to get their attention, make them a party to the divorce case. After all, who would want to be part of someone else’s divorce…just turn over the docs.

Illinois domestic relations courts can liberally include parties in their divorce cases. “The court may join additional parties necessary and proper for the exercise of its authority under this Act.” 750 ILCS 5/403(d)

Whether part of divorce case or not, the subpoena receiver will be ordered to compel production pursuant to the subpoena’s written request (so long as there is no pending objection).

Failure to produce the documents after an order to compel production is issued will allow the subpoena issuer to file a petition for contempt of court.

“If a party, or any person at the instance of or in collusion with a party, unreasonably fails to comply with any provision….of the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails to comply with any order entered under these rules, the court, on motion, may enter…contempt proceedings, compel obedience by any party or person to any subpoena issued or order entered under these rules.” Ill. Sup. Ct. R. 219

Sanctions are usually reserved for parties and their attorneys but subpoena receivers can also be subject to sanctions for failure to answer a subpoena. “Rule 219 does not limit imposition of sanctions only to parties or their attorneys.” Nat’l Wrecking Co. v. Midwest Terminal Corp., 234 Ill. App. 3d 750, 769 (Ill. App. Ct. 1992)

Contempt is a big, broad issue in an Illinois divorce court. Illinois divorce courts can weild contempt charges however they want.

“The power to punish for contempt is inherent in courts, as necessary for their self-protection and the maintenance of their dignity, and as an essential auxiliary to the administration of the law and public justice. This power has been recognized from earliest times and from the beginning of judicial administration.” Illinois Commerce Commission v. Salamie, 369 NE 2d 235 – Ill: Appellate Court, 1st Dist., 4th Div. 1977 (citations omitted)

“The contempt power lies at the core of the administration of a state’s judicial system.” (Judice v. Vail (1977), 430 U.S. 327, 97 S.Ct. 1211, 1217, 51 L.Ed. 376, 384.)

The point of contempt is to get the requested documents and move on with the divorce case.

“The purpose of civil contempt is to compel compliance with court orders, not to punish.  It is to compel the contemnor to act. It is remedial in nature.  A civil contempt proceeding is a proper method for testing the correctness of a pretrial discovery order.” Adler v. Greenfield, 990 NE 2d 1219 – Ill: Appellate Court, 1st Dist., 6th Div. 2013

Continued failure to produce documents requested in a subpoena can result in the court ordering that the subpoenaed party be jailed until the documents are turned over.

“Supreme Court Rule 277(h) provides that any person who fails to obey an order to deliver up or convey any personal property or its proceeds or value may be committed until the order is obeyed.” Kennedy v. Four Boys Labor Service, Inc., 664 NE 2d 1088 – Ill: Appellate Court, 2nd Dist. 1996

Putting a subpoena receiver in jail is no small feat. They deserve a hearing to explain themselves and their non-compliance before any order for commitment is issued.

“No order of body attachment or other civil order for the incarceration or detention of a natural person respondent to answer for a charge of indirect civil contempt shall issue unless the respondent has first had an opportunity, after personal service or abode service of notice as provided in Supreme Court Rule 105, to appear in court to show cause why the respondent should not be held in contempt.” 735 ILCS 5/12-107.5

If the subpoena receiver politely explains that they cannot comply with the subpoena request (probably because they do not have the requested documents), they will not be found in contempt.

A “violation was not willful and contumacious…[if]..he or she had a valid excuse for failing to follow the order.” In re Marriage of Knoll, 2016 IL App (1st) 152494, ¶ 50, 65 N.E.3d 878

If the subpoena receiver has the documents, the only defense to not producing those documents is to claim that the documents are privileged communication.

“All matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure.”   Ill. Sup. Ct. R. 201

Privileged information is almost always communication that society agrees should be free from broader inspection so as to encourage honesty and full disclosure between the communicators. Communication with attorneys, doctors, therapists and spiritual advisors is privileged.

Refusing to comply with a subpoena’s request just because it is a massive hassle is NOT invoking any kind of privilege.

“It is well settled that no privilege can be claimed by the custodian of corporate records, regardless of how small the corporation may be” Bellis v. United States, 417 US 85 – Supreme Court 1974

Even a third-party to the third-party preventing compliance with a subpoena can result in a contempt finding.

“[I]t is contempt of court to fire or discipline an employee for attending court when subpoenaed as a witness” Palmateer v. International Harvester Co., 421 NE 2d 876 – Ill: Supreme Court 1981 (citation omitted)

When the subpoenaed party is not an Illinois resident, however, it becomes much more difficult to enforce the subpoenas.

An Illinois order to detain a third party cannot be enforced in another state unless the Illinois order has been enrolled in that third party’s state and then adjudicated under that state’s rules. This means hiring an attorney licensed in that state to enroll the order and demand enforcement from that state’s courts.

Subpoenas are great because they can give you the documents you need now to move your divorce case forward when your spouse will not provide those same or similar documents.

But, if a third party has access to documents that are relevant to your divorce and you are having a hard time getting that third party to produce those documents, there is a very good chance that you or your spouse have the right to request those documents independently. It is probably just easier to simply ask the third party for the documents or to have the court order your spouse to ask for the documents in lieu of issuing a subpoena.

If your spouse and the subpoenaed party cannot find the documents…they are likely collaborating with each other and should both be held in contempt. Failure to produce documents by a spouse and third-party who can be inferred to be acting in coercion should then result in sanctions which will affect your ultimate trial.

“If a party, or any person at the instance of or in collusion with a party, unreasonably fails to comply with any provision of part E of article II of the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:

That a witness be barred from testifying concerning that issue” Ill. Sup. Ct. R. 219(c)(iv)

The non-cooperative spouse will not be allowed to testify as to what he or she is not cooperating with. For example, failure to turn over documents regarding a business will result in that spouse not being allowed to testify regarding that business.

This allows the other spouse to say whatever they want about the business without rebuttal. Ex: “This business makes a lot of money. He always told me so.”

“[T]estimony is evidence.” People ex rel. Hartigan v. ILL. COMMERCE COM’N, 592 NE 2d 1066 – Ill: Supreme Court 1992

“[J]udges base their findings only on competent evidence.” People v. Todd, 687 NE 2d 998 – Ill: Supreme Court 1997

A non-complying spouse’s enforced silence will result in the court only considering the other spouse’s testimony.

Again, the purpose of all discovery sanctions is compliance: disclosure of the truth. Once proper disclosure is made, the sanctions should be lifted.  

“A just order of sanctions under Rule 219(c) is one which, to the degree possible, insures both discovery and a trial on the merits…When imposing sanctions, the court’s purpose is to coerce compliance with discovery rules and orders, not to punish the dilatory party.” Shimanovsky v. Gen. Motors Corp., 181 Ill. 2d 112, 123 (Ill. 1998)

If you are struggling with a spouse who will not tell you the truth and third-parties who are complicit in this obscuration of the facts by not completing responding to subpoenas, you need help. Contact my Chicago family law firm to discuss your case with an experienced Illinois divorce attorney.

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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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