Motion to Compel Discovery in an Illinois Divorce

The short answer

Discovery in an Illinois divorce runs on deadlines. Interrogatories and document requests generally must be answered within 28 days. When answers are late, incomplete or missing, you first talk with the other side and try to fix it. If that fails, you file a motion to compel, give notice and ask the judge for an order with a firm deadline. Continued refusal can lead to sanctions.

What discovery the other side owes you

Discovery is governed by the Illinois Supreme Court Rules, mainly Rules 201 through 219, and in Cook County by Part 13 of the Rules of the Circuit Court of Cook County. Rule 13.4(g) says discovery follows the Supreme Court Rules and that discovery motions go before the assigned judge for supervision and enforcement. These are the main tools in a divorce.

Interrogatories

Interrogatories are written questions the other party must answer under oath. Under Supreme Court Rule 213, a party may serve up to 30 interrogatories, including subparts, unless the parties agree or the court allows more. The answering party has 28 days after service to serve sworn answers or objections to each question, and must restate each question before its answer.

Requests to produce

A request to produce under Rule 214 asks for documents, electronically stored information and other things: bank and credit card statements, tax returns, business records, retirement statements. The request must allow at least 28 days to respond unless the parties agree or the court orders otherwise. The responding party must produce the materials or serve written objections, and must provide an affidavit stating whether the production is complete. In Cook County, Rule 13.4(g)(iv) adds that this affidavit must list the documents produced with specificity. Both sides have a continuing duty to supplement their responses.

Financial affidavit

Cook County Rule 13.3.1 makes the financial affidavit a mandatory disclosure in cases involving property division, maintenance, child support or attorney fees, served together with proof of income under Rule 13.3.2. Rule 13.3.1(e) also says a party must serve their own completed financial affidavit before seeking discovery, unless the court orders otherwise. A spouse who does not serve one on time can face sanctions the court considers appropriate, including those under Supreme Court Rule 219. Our discovery in divorce page explains how these pieces fit together.

The Rule 201(k) conference before you file

Supreme Court Rule 201(k) requires the parties to make reasonable attempts to resolve discovery differences. Every discovery motion must include a statement that, after personal consultation and reasonable attempts to resolve differences, the parties could not reach an accord, or that the other side made themselves unavailable for consultation or was unreasonable.

People often call the first step a "Rule 201(k) letter." A letter or e-mail that lists each missing answer and proposes a date is a good start. Because the rule speaks of personal consultation, follow up with a phone call, video call or meeting. Keep a short log of each contact: the date, who took part, what was discussed and what was promised. That log becomes the 201(k) statement in your motion. Self-represented parties should follow the same steps.

Filing a motion to compel in Cook County, step by step

In the Domestic Relations Division, a motion to compel discovery is heard by the judge assigned to your case. These are the usual steps.

1. Pin down the gaps. List each unanswered interrogatory and each missing category of documents. Cook County Rule 13.4(g)(iii) requires every objection to an interrogatory or answer to include the interrogatory or answer at issue, so quote them in your motion.
2. Check your own compliance. Confirm you served your financial affidavit and proof of income, that your requests were properly served, and that the response deadline has passed.
3. Hold the 201(k) conference. Make the personal contact and write down what happened.
4. Draft the motion. Rule 13.4(a) requires a written motion with an accurate title, such as "Motion to Compel Answers to Interrogatories and Production of Documents," and a statement of the authority relied on. Cite Supreme Court Rules 201(k), 213, 214 and 219(a), ask for an order with a specific compliance date, and request reasonable expenses.
5. E-file it. File in your existing case through eFileIL, using the Odyssey eFileIL portal or another approved filing service provider.
6. Serve a notice of motion. Cook County Circuit Court Rule 2.1 requires written notice of the hearing with the case name and number, the judge, and the date, time and place, served with a copy of the motion under Supreme Court Rule 11, usually by e-mail.
7. Prepare for the hearing. Bring the discovery requests, proof you served them, any responses or objections, your 201(k) log and letters, the certificate of service for your financial affidavit, and a proposed order with a firm deadline. Hearings may be in person or by Zoom, as the judge directs.
8. Follow through. Calendar the compliance date in the order. If it passes without full compliance, the next step is usually a motion for sanctions under Rule 219(c).

Timing matters. Under Cook County Rule 13.4(g)(ii), once discovery closes, no further discovery is allowed except as Supreme Court Rules 213(i) and 214 permit, or by court order on a showing of extraordinary circumstances. Bring your motion while discovery is open.

Sanctions under Rule 219

Discovery sanctions come from Supreme Court Rule 219. Under Rule 219(a), if the court finds that a refusal or failure to answer was without substantial justification, it shall require the offending party, or the party whose attorney advised the conduct, to pay the reasonable expenses of obtaining the order, including attorney fees. The rule cuts both ways: if the motion is denied and was made without substantial justification, the moving party pays.

If a party then fails to comply with a discovery order, Rule 219(c) allows the court to enter orders that are just, including:

• staying further proceedings until the order is obeyed;
• barring the party from filing other pleadings on the issue, or from maintaining a claim or defense on it;
• barring a witness from testifying on the issue;
• entering a default judgment or dismissal on claims to which the issue is material, or striking related parts of a pleading;
• ordering payment of reasonable expenses and attorney fees, and a monetary penalty when the misconduct is wilful; and
• contempt proceedings to compel obedience.

The Illinois Marriage and Dissolution of Marriage Act adds its own rule. Under 750 ILCS 5/508(b), noncompliance with a discovery order is presumed to be without compelling cause or justification, a presumption that can only be rebutted by clear and convincing evidence, and the court must then award the prevailing party reasonable attorney fees and costs.

Subpoenas to banks and employers

Sometimes the records are easier to get from the source. Under Supreme Court Rule 204(a)(1), the Clerk issues subpoenas on request, and an Illinois attorney of record may also issue them. A subpoena can command a bank, employer, payroll company or retirement plan to produce documents. Rule 204(a)(4) lets the notice excuse the person from appearing for a deposition if copies of the listed documents are served by a set date; the requesting party then serves true and complete copies on all parties at least three days before the scheduled deposition and files a certificate of compliance. The fee and mileage must be tendered, and under Rule 201(o) a copy of any discovery request to a nonparty must be filed with the Clerk.

Subpoenas are especially useful when a spouse owns a business or when money may have been spent on things unrelated to the marriage. See our guides on how a business is divided in a divorce and dissipation of marital assets, and our page for small business owners in divorce.

What the other side can do

• Comply. Some motions to compel are resolved when the answers arrive before the hearing.
• Object. Rule 214(c) allows written objections, including that the burden or expense would be disproportionate to the likely benefit under the factors in Rule 201(c)(3).
• Ask for a protective order. Under Rule 201(c)(1), the court may deny, limit, condition or regulate discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage or oppression.
• Claim a privilege. Rule 201(n) requires the claim to be made expressly and supported by a description of what is withheld and the exact privilege claimed.
• Argue substantial justification. A party who had a good reason for the delay may avoid an expense award, and may ask for its own expenses if the motion lacked substantial justification.

Common mistakes to avoid

• Skipping the 201(k) step. A motion without the required statement may be denied or continued.
• Filing a vague motion. Quote the exact requests and responses so the judge can rule on each one.
• Not serving your own financial affidavit first. Cook County Rule 13.3.1(e) expects it before you seek discovery.
• Waiting until discovery closes. Late motions face the extraordinary-circumstances standard.
• Overreaching. Requests for every record from every year invite proportionality objections.
• Jumping to severe sanctions. Ask first for an order with a deadline; Rule 219(c) sanctions are aimed at failures to follow the rules or a court order.

How Chicago Family Attorneys can help

Chicago Family Attorneys, at 53 W. Jackson Blvd., Suite 752, in the Chicago Loop, handles discovery in divorce cases throughout Cook, DuPage, Will and Lake Counties, as part of divorce representation or as a defined limited-scope task:

• Discovery and evidence preparation. Drafting only, a flat fee starting at $500.
• Drafting your motion to compel. A flat fee starting at $500 for you to file.
• One hearing appearance. A flat fee starting at $1,200 for the hearing named in your agreement. See limited-scope fees.
• Full representation. An initial payment of $1,500 to $2,500, then $500 to $650 per month beginning 30 days after the initial payment while representation remains active. See contested divorce fees.

Court filing costs and subpoena or records charges are separate. Your fee and scope are confirmed in writing before you engage the firm. Before your consultation, review our 25 questions for your divorce consultation and bring your discovery requests and any responses.