When a divorce starts, one party files a Petition For Dissolution of Marriage, the other party files an Appearance and a Response To The Petition For Dissolution of Marriage and maybe a Counter-Petition For Dissolution. Then the parties file their respective Motions For Temporary Relief. This is all the easy part! Because the next step is…discovery.
There are many tools of discovery which the Illinois Supreme Court Rules provides. The financial affidavit is the mandatory summary of each party’s assets, debts, income and expenses, Interrogatories are another (usually) standard list of questions related to assets debts and income, Requests For Admission affirm these documents and facts for the sake of clarity, subpoenas ask 3rd parties for relevant documents which are (typically) not in the parties possession. But, the grand daddy of discovery in Illinois civil cases is the Notice To Produce.
In an Illinois divorce a Notice To Produce (also known as a Notice To Produce Documents) is a list of items one party requests from the other party. The other party must provide a copy of those documents within 28 days (at a minimum).
Virtually all the information a divorcing party will need to verify their spouse’s income, expenses, assets and debts, should be producible by that spouse. Think about it…how could a spouse not have access to the documents that reflect their income, expenses, assets and debts?
“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)
What Does A Notice To Produce For An Illinois Divorce Look Like?
If you haven’t already been served with a Notice To Produce In Your Illinois Divorce and you want to serve your spouse with a Notice To Produce, you can simply use the standard Notice To Produce my office uses which is below. Please note, you can add or subtract anything you want from a Notice To Produce. If your spouse is paid in cash, don’t bother asking about checks. If your spouse owns a pet store, you can ask for an inventory of animals.
There are very few boundaries to what a Notice To Produce can include. If you overstep the bounds of relevancy or decency with your Notice To Produce, it is the opposing side’s burden to object or simply play dumb and say “not applicable” or “not available at this time.”
I’ll tell you how to answer a Notice To Produce later on in the article.
Without further ado, my sample Notice To Produce for an Illinois divorce.
STATE OF ILLINOIS )
COUNTY OF COOK )
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, DOMESTIC RELATIONS DIVISION
IN RE THE MARRIAGE OF:
v. NO. 2020 D [Case number]
NOTICE TO PRODUCE DOCUMENTS
[Address of opposing attorney or party]
Pursuant to Rule 214 of the Illinois Supreme Court Rules, the Petitioner, [Your Name] by and through their attorney, Russell Knight, hereby requests the Respondent, [Name of your spouse] to produce within twenty-eight (28) days, at [you or your lawyer’s address] for inspection and copying, the document listed on the attached Rider.
[Your name or your lawyer’s name]
[Your phone number]
[Your email address]
“DOCUMENT” or “RECORD” as used shall mean the original and all copies of drafts of any written, recorded or graphic matter including, but not limited to, letters, correspondence, telegrams, contacts, diaries, inter-office communications, studies, worksheets, charts, graphs tape recordings, transcription or any other memorial of any conversation, meeting, conference or telephone call, reports of files, however produced or reproduced and documents of any kind or description in the possession, custody or control of the Respondent or his agents.
“DOCUMENT” or “RECORD” as requested, unless otherwise specified, shall make reference to the five year period prior to the filing of this action up to and including the present. Any documents previously produced pursuant to Supreme Court Rule 201 (k) shall not be reproduced, the prior production constituting compliance with this Request.
“INTEREST” shall refer to legal, beneficial, nominee, vested, non-vested, contingent, expectant or compensable at the present or in the future.
1. Personal or Joint Income Tax Returns:
Copies of state and federal income tax returns filed by you or on your behalf, including all schedules, 1099 Forms, and W-2 Forms, received from any employer(s) during said period, including all amended returns and Statements of Assets and Liabilities. For the present year and for the three (3) previous years, if the tax return is not prepared, attach copies of present or estimated tax declarations for said years.
2. Your Principal Business or Income-Producing Activity:
If you we’re an officer or principal stockholder of any closely held corporat1ons, or 1f you own or operate any businesses as sole proprietor, a partner or a joint venture, or if you derive a part of any earned income from a single business activity, provide the follow1ng documents:
- Partnership agreements, joint venture agreements or stockholders
agreements; articles of incorporation; buy-sell agreements; corporate minute book; fictitious name statements for each such entity.
a. General ledgers and journals, documents evidencing your capital or
b. other monetary contributions thereto; documents evidencing your receipt of funds therefrom whether salary, bonus, draw, dividend allocations of profits, or retirement plans from any such entity.
c. Appraisals of your interest in each entity; appraisals of the value of said entity, including pictures, brochures, advertisement literature; financial statements prepared for each entity including profit and loss statements, balance sheets, statements of net worth and retained earnings; annual reports to stockholders, investors or partners; written offer by any person or entity to purchase all or part of said business.
3. Salary or Regular Monthly Compensation:
If not produced in the preceding request, provide copies of your monthly paycheck stubs, indicating gross monthly pay, deductions and net pay. Also produce books and records reflecting all income, bonuses, commissions and all other compensation received, to include pay stubs, canceled checks and check registers, from all sources.
4. Business Tax Returns:
Provide complete copies of the federal and state tax returns filed by your business, partnership, joint venture, corporation or other entity.
5. Personal Financial Statements:
Provide copies of each personal financial statement prepared by or for you whether or not submitted to any bank, savings and loan or any financial institution.
6. Retirement Plan Interest: Provide copies of the following:
a. Retirement plan “Summary Plan Description;”
b. Participant’s annual retirement plan statements;
c. Actuarial valuation of your retirement plan interests calculated at any time;
d. Profit sharing plan “Summary Plan Description;”
e. Participant’s annual profit sharing plan statements;
f. Actuarial or accountant’s valuation of your profit sharing plan interest;
7. Interest in Partnerships:
For each interest you have in a partnership, provide the following:
- Partnership agreement; amendments, revisions or additions thereto;
a. Partnership income tax returns filed; K-1 income tax forms filed; promissory notes
b. Appraisals of your interest in said partnership, or of value of partnership or of its assets; written offers by any person or entity to purchase your interest
c. Correspondence or other writings evidencing the value of the partnership, its underlying assets or of your interest.
8. Interest in Closely Held Corporations:
For each interest you have in stock in a closely held corporation, or in stock which is not traded over the counter or on an exchange, provide the following: copies of stock certificates, correspondence which places a value on shares of stock or which contains information which could lead to a valuation of shares, together with the following
a. The annual profit and loss statements and balance sheets with an interim statements filed for the current year; a copy of any financial statements furnished on behalf of the corporation in connection with loan applications.
b. Copies of business corporation books and records, including documents or other memoranda indicating· shareholder agreements regarding purchase or sale, stock options, deferred compensation or the payment of dividends.
c. The amount of any offer to purchase stock of the corporation; a copy of any report issued or valuation or appraisal of the corporation; copies of any prospectus of each corporation.
9. Stocks and Bonds:
For each account maintained by you with a brokerage or securities firm, furnish monthly account statements and year end summaries; all stock certificates or other documents evidencing ownership which contain your name as owner.
10. Certificate of Deposit and Similar Instruments:
For each certificate of deposit, time deposit and similar instrument owned, whether in your name or jointly, or in the name of a nominee or trustee for your benefit, provide a copy of each document evidencing your interest, the amount invested, maturity date and rate of interest.
11. Checking Accounts:
For each checking account maintained by you, or in which you have (or have had) an interest, whether in your name solely or jointly, trust account, business or otherwise, provide the following: monthly bank statements, canceled checks, check registers and duplicate deposit slips, pledge agreements, collateral agreements, wire transfers or other transactions.
12. Savings Accounts:
For each savings account in which you have deposited money whether in your name, or in the name of any other person, entity, trust or business, furnish the passbook for each said account.
13. Safety Deposit Boxes:
For each safety deposit box in which you have had an interest, provide all writings, correspondence or other documents evidencing your ownership, rental or interest in each said box and list the contents therein.
14. Real Estate and/or Land Trusts:
A copy of any deeds, letters of agreement or trust agreement for real estate in which you have had a beneficial interest and closing statements or other documentation in connection with the acquisition or sale thereof. In lieu of deeds, you may furnish a statement as to the date of purchase, cost, financing details and current market value with copies of appraisals obtained in connection with the real estate. Copies of leases in connection with any commercial or residential real estate in which you have a beneficial interest. Deed(s) of Trust; promissory note(s); escrow documents; tax bills, appraisals; documents listing improvements (or value of same), from date of purchase.
15. Furniture and Furnishings at Your Residence:
List submitted for insurance purposes; appraisals of value; documents indicating source of funds or date of purchase and present location of items.
16. Jewelry, Antiques, Personal Property of Value Not Previously Listed:
Provide the following: Issuance of third-party appraisals, copies of insurance policies listing items for which coverage was provided, schedules of property or assets; documents listing the value of the above with sales slips or purchase orders, canceled checks on items purchased and present location of items and name of custodian.
17. Real Property Leases:
For each parcel of real property which you lease, whether for personal or business purposes, provide copies of each lease.
18. Automobiles, Other Vehicles and Boats:
For each automobile, vehicle or boat owned by you, provide the following: current title, purchase documents, financing documents, appraisals.
19. Country Club or Social Club Membership:
For each membership, provide the following: documents evidencing purchase price of membership, annual dues and other assessments, value of membership, appraisal of membership interest.
20. Life Insurance:
Copies of all policies of insurance covering your life or your interest in tangible property, including life, endowment, annuity, theft, floater, liability, health and accident, automobile; description of property insured, benefits payable and premiums on policy. For each policy of life insurance in which you are a beneficiary or on which you pay premiums, provide a copy.
21. Wills, Trusts, Codicils:
a. Provide copies of each will, trust and codicil executed by you.
b. Copies of wills or trust agreements in which you are a present income beneficiary or ultimate beneficiary.
22. Unsecured Debts and Obligations:
For each debt or obligation unsecured by real property which is owned to any third party or entity, provide writings, correspondence, billings, notice or other documents evidencing said debtor obligations, the date incurred, date due and payable, nature of said debt or obligation, defenses to payment or liability thereon.
23. Charge Card Accounts:
For each charge card, credit card or credit card account maintained by you, provide account statements and annual summaries.
24. Bank Accounts in Foreign Countries:
For each bank account held by you or by a person on your behalf, please provide all statements of account, passbooks and the documentation relating thereto.
For each contract between you and anyone representing you or in which you have an interest, provide a copy of that contract and any statement of accounts on payments due or made on these contracts including employment contracts.
a. A copy of any partnership agreements, returns filed and K-1 statements furnished; copies of documents or memoranda furnished the partners; arrangements regarding expense reimbursements, division of assets and schedule of payout. In connection with any limited partnership, furnish any sales prospectus or documentation relating to acquisition of your partnership interest with the amount and percentage interest of the other partners and the time and amount of your capital contributions and reimbursements.
b. In regard to any business or employment contracts, provide copies of all amendments, including those in negotiation. Furnish any memoranda regarding deferred compensation arrangements, bonuses or commissions, and expense account policy or limitations. Detail expense account reimbursements to date. Statement and detail any compensation which has been earned by you but not yet paid.
26. Keogh or IRA Pension Plan:
Any documents and records reflecting your participation or interest in Keogh or IRA pension plans.
27. Pension and Profit Sharing:
All documents relative to an interest you may have in any pension or profit sharing plan including, but not limited to, a copy of the employer-furnished description of any pension or profit sharing plan in which you have a beneficial interest with the last employer-furnished statement stating the nature and value of your interest; lacking such statement, a certificate from the employer as to the amount and form of benefits due you under the plan, currently and in the future, and indicia of whether said interest is vested, including severance pay.
28. Undisclosed Assets:
All documents of title to other assets not named in this Schedule in which you have any ownership interest, beneficial, legal or otherwise.
29. Patents or Copy Rights:
A list of all patents or copy rights in your name or in the name of any firm, partnership or corporation in which you have an interest.
30. Accounts Receivable:
List all accounts due you including the name and address of all debtors, the original amount of the account, the current balance, the manner of repayment and ledger copies of payments billed and received.
31. Medical/Dental Insurance:
Copies of any medical or dental reimbursement plans to which you are a party or a detailed description thereof.
32. Income Expectancies:
List any expectancies from inheritance, insurance claims, damage or injury suits, whether on file or contemplated, business transactions agreed upon but not yet initiated, payments of compensation of any form due for services rendered or for contract entered into but not yet paid or received.
33. Cash Flow:
Any and all records, documents, payers and memoranda pertaining to moneys received and being presently received by you from all sources including, but not limited to, salaries, wages, draws, dividends, bonuses, sick pay, pensions or retirement funds, reimbursed expenses, return of capital, executive compensation, rents or proceeds of sale of capital assets, gratuities, gifts or loan proceeds used for living expenses.
34. Affidavits Previously Filed:
All affidavits of monthly income and monthly expenses prepared and/or submitted for any court hearing relative to any issue of support, distribution of property, allocation of debts or award of legal fees and all documents relating to the preparation of the requested affidavit.
37. Financial Affidavit
Illinois Supreme Court approved Financial Affidavit (Family & Divorce Cases)
An affidavit stating whether this production is complete in accordance with this Request.
[Your phone number]
[Your email address]
How Do You Serve A Notice To Produce In An Illinois Divorce?
“One copy of the request shall be served on all other parties entitled to notice.” Ill. Sup. Ct. R. 216(b)
The other side must accept receipt of your Notice To Produce via email.
“A notice to produce can be sent via email to the attorney of the other spouse. Unless otherwise specified by rule or order of court, documents shall be served electronically. Electronic service may be made either through the court electronic filing manager or an approved electronic filing service provider, if available. For all parties for which such service is not available, the filer shall make service to the e-mail address(es) identified by the party’s appearance in the matter. If service is made by e-mail, the documents may be transmitted via attachment or by providing a link within the body of the e-mail that will allow the party to download the document through a reliable service provider.” Ill. Sup. Ct. R. 11(c)
It’s your option to file your Notice Of Service for your Notice of Production. I don’t file one as a time-stamped email proves that you sent the Notice with the exact same efficacy.
While notice of discovery can be file filed with the court, the actual discovery MUST NOT be filed with the court. There’s a lot of personal information in both discovery requests and discovery answers and court filings are public records.
“No discovery may be filed with the clerk of the circuit court except by order of court.” Ill. Sup. Ct. R. 201(m)
Your Notice To Produce should have a time limit to respond and where they can reply to. 28 days is the minimum time-frame within which they shall reply and an address at which they can reply (physical or email).
What If The Other Side Doesn’t Reply To The Notice To Produce Or Doesn’t Reply Completely?
If after your deadline, you do not have a reply to your Notice To Produce, you must demand a reply via rule 201(k) of the Illinois Supreme Court Rules.
“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)
Failure to answer the discovery request timely constitutes a difference over discovery.
The rules “contemplate that discovery will generally proceed without judicial intervention and that the great majority of discovery questions will be resolved by counsel themselves.” Williams v. A. E. Staley Manufacturing, 83 Ill. 2d 559, 563 (1981)
A typical request reminder letter will look like the following:
“I have prepared and forwarded this letter in an attempt to resolve discovery issues pursuant to Illinois Supreme Court Rule 201(k). At issues is a request for your client’s Interrogatories to be Answered by Petitioner, Notice to Submit financial affidavit and Proof of Income.
Our office served you with a request to produce said documents on [date you sent them] . It is now beyond twenty-eight (28) days and we have not received a response on behalf of your office.
Please update me as to the status of these documents promptly before our office is forced to file a Motion to Compel. If this is an error, please forward the discovery to me by [7 days or however long you want to give them]. Otherwise let this serve as a 201(k) letter upon your office.”
After your second deadline passes you have satisfied Rule 201(k)’s requirements that you be a nice guy. You may now file a motion with the court to compel the production of what you have requested.
The consequences for not complying with a Notice To Produce are serious.
“Refusal to Answer or Comply with Request for Production. …If a party…refuses comply with a request for the production of documents or tangible things or inspection of real property, the proponent of the question or interrogatory or the party serving the request may on like notice move for an order compelling an answer or compliance with the request. If the court finds that the refusal or failure was without substantial justification, the court shall require the offending party or deponent, or the party whose attorney advised the conduct complained of, or either of them, to pay to the aggrieved party the amount of the reasonable expenses incurred in obtaining the order, including reasonable attorney’s fees.” Ill. Sup. Ct. R. 219(a)
So, you can ask for fees for the mere non-timely compliance with your own request. But don’t go bonkers with these requests. If you’re making a mountain out of a molehill, you may have to pay the other side’s attorney’s fees when they set the record straight.
“If the motion is denied and the court finds that the motion was made without substantial justification, the court shall require the moving party to pay to the refusing party the amount of the reasonable expenses incurred in opposing the motion, including reasonable attorney’s fees.” Ill. Sup. Ct. R. 219(c)
If the party never provides an answer after warnings and orders to compel, they are in deep trouble. A court will essentially neuter and/or punish the refusing party by ordering:
“(i) That further proceedings be stayed until the order or rule is complied with;
(ii) That the offending party be debarred from filing any other pleading relating to any issue to which the refusal or failure relates;
(iii) That the offending party be debarred from maintaining any particular claim, counterclaim, third-party complaint, or defense relating to that issue;
(iv) That a witness be barred from testifying concerning that issue;
(v) That, as to claims or defenses asserted in any pleading to which that issue is material, a judgment by default be entered against the offending party or that the offending party’s action be dismissed with or without prejudice;
How Do You Answer A Notice To Produce Documents In An Illinois Divorce?
The reply to a Notice To Produce Documents you formally issue a numbered list under the case caption with a formal response to each numbered request.
Typically, you ask the opposing counsel to furnish you with a Word version of their Notice To Produce so your answers can be directly below their requests.
The answers typically will look like the below
- NOT AVAILABLE AT THIS TIME.
- Objection. Privileged Information.
Then you must attach, if requested (and it’s always requested), an affidavit of completeness as to your responses to the Notice To Produce. A sample affidavit of completeness is below.
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, DOMESTIC RELATIONS DIVISION
IN RE: THE MARRIAGE OF )
) No. [Case Number]
AFFIDAVIT OF COMPLIANCE WITH
REQUEST FOR PRODUCTION OF DOCUMENTS
I, the undersigned, do hereby certify that a copy of a Response to Request for Production of Documents and exact copies of documents produced by Petitioner, [Name], in response to the said Response to Request for Production of Documents were mailed to the attorney for the Respondent. The Petitioner further states that she has produced copies of any and all documents in her possession to the best of her knowledge and belief, production is complete in accordance with the said Request for Production of Documents.
[Name of Document Producer]
Subscribed and sworn to before me on
This day of , 20 .
The reply to a Notice To Produce Documents can be sent via email and the attached items can be attachments to that email or they can links to a Dropbox or other cloud account.
The other party CANNOT insist upon physical documents if the documents aren’t kept physically (and what documents are kept physically anymore?)
“[I]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Ill. Sup. Ct. R. 214(c)
Duty To Seasonably Produce In An Illinois Divorce
If you were asked for it once and it has changed or updated, you must voluntarily send the updated version to the other side at your earliest convenience.
“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.” Ill. Sup. Ct. R. 214(d)
The other side is also encouraged to send you friendly reminders to update your produced answers as the months pass during an Illinois divorce case.
Notice To Produce and Interrogatories In An Illinois Divorce
Often a Notice To Produce and Interrogatories effectively overlap. The questions an interrogatory asks can be answered with documents that the Notice To Produce is also requesting. So, answer both the Interrogatories and the Notice To Produce at the same time and refer to the others’ answer if you’ve already answered a question/request.
“When the answer to an interrogatory may be obtained from documents in the possession or control of the party on whom the interrogatory was served, it shall be a sufficient answer to the interrogatory to produce those documents responsive to the interrogatory. When a party elects to answer an interrogatory by the production of documents, that production shall comply with the requirements of Rule 214.” Ill. Sup. Ct. R. 213(2)
Notice To Produce At Trial
The “Notice To Produce” we’ve been referring to throughout this article refers to a party’s duty to produce documents and information to the opposing party upon request within a specified timeline.
A request to bring those documents to a trial for use as evidence is also referred to as.a “Notice To Produce” under rule 237. That rule requires a person to submit THEMSELVES as a witness for a trial or hearing at a specified date and time and provide original documents (always with testimony in order to authenticate said documents).
“The notice also may require the production at the trial or other evidentiary hearing of the originals of those documents or tangible things previously produced during discovery” Ill. Sup. Ct. R. 237(b)
To the layperson, this is a confusing use of the same phrase.
Does this all look like a lot of work? Because it really is a lot of work. But, if you do not double check your spouse’s claims from their financial affidavit you are either very trusting or you will be filled with doubt and regret.