In an Illinois divorce, discovery may go beyond the state. For example, one spouse may work for an employer in Indiana or keep bank accounts in Florida. Another spouse may transfer money through an out-of-state relative or company. These records can be vital in deciding maintenance, child support, property division, dissipation, attorney’s fees, or other issues in the divorce. A divorce court may require the spouses to exchange discovery. However, the more difficult question arises when the necessary information is held by a person or company outside Illinois. An Illinois subpoena is helpful in the Illinois case, but the out-of-state witness or record holder may not have to comply with that Illinois subpoena, unless the subpoena is turned into a valid subpoena in the state where discovery is being sought. The process is commonly called domesticating the subpoena. Domesticating an out-of-state subpoena refers to taking a subpoena from one state and using the procedure of another state to issue a subpoena that can be served and enforced where the witness, documents, electronically stored information, business records, or other evidence is. So, out-of-state discovery is a two-step problem. First, the Illinois divorce lawyer must identify what information is required and who truly has it. Second, the lawyer must domesticate the subpoena in the state where the witness, documents, electronically stored information, or business records are located. Discovery In An Illinois Divorce Discovery is where parties get the information they need to prepare their case. In Illinois, “information is obtainable” through multiple methods, such as depositions, written interrogatories, document production, inspection of real estate, requests to admit, and physical or mental examinations. Ill. S. Ct. R. 201(a). Further, “a party may obtain by discovery full disclosure” regarding matters relevant to the subject matter of the pending action. Ill. S. Ct. R. 201(b)(1). Discovery is particularly important in a divorce, as an Illinois court cannot divide property, determine income, allocate expenses, set support, or award attorney’s fees without reliable information. Thus, a spouse’s financial affidavit must be supported by “documentary evidence including, but not limited to, income tax returns, pay stubs, and banking statements.” 750 ILCS 5/501(a)(1). A financial affidavit is only the beginning of financial discovery, though. The other spouse may need more complete records to value assets, verify income, trace transfers, or determine whether money was spent, hidden, or moved. Common discovery in an Illinois divorce includes requests for pay records, […]
