Mandatory Disclosure

MANDATORY DISCLOSURE

Local Rules
     A recent trend in divorce law procedure is the concept of mandatory disclosure.  In Illinois, mandatory disclosure is governed solely by the local circuit court rules; there is no provision for mandatory disclosure in either the Illinois marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., or the Illinois Supreme Court Rules.
     Virtually all circuits in Illinois have adopted some form of mandatory disclosure in divorce litigation.  A list of the current rules in each circuit is included in §6.36 below; caution is advised, however, in that local rules change from time to time, and counsel venturing into an unfamiliar county should obtain the current local rules.
     The rules vary significantly from county to county in the procedure for mandatory disclosure, the amount of information required in the disclosure, and the types of cases in which disclosure is required.  By way of example, the rules in several of the counties are examined in the following sections.

Mandatory Disclosure in Cook County
     Cook County Circuit Court Rules 13.3.1 and 13.3.2 govern mandatory disclosure in Cook County divorce litigation.  The rules underwent substantive changes recently, and the current rules went into effect on January 1, 2003.

     Rules 13.3.1 and 13.3.2 provide:

     13.3.1 Mandatory Disclosure

     (a) Prejudgment Disclosure

In a prejudgment proceedings in which a party is seeking division of the marital estate, to establish, modify or enforce an order for maintenance, child support or educational expenses pursuant to Section 513 of the Illinois Marriage and Dissolution Act, retroactive child support in a parentage matters, or an award of fees or costs against the other party, each party shall serve a completed “Disclosure Statement” upon the other party on forms approved by the Court.  Each party shall serve the completed “Disclosure Statement” not later than thirty (30) days after service of the initial pleading or the filing of the responding party’s appearance, or not less than seven (7) business days prior to a hearing, whichever date first occurs.  When further relief is sought form the Court and a material change in circumstances has occurred, an updated completed “Disclosure Statement” must be served on the other party no less than seven (7) days prior to any hearing.

(b) Post-judgment Disclosure

In all post-judgment proceedings in which a party is seeking to establish, modify or enforce an order of maintenance, child support, support for educational expenses pursuant to Section 513 of the Illinois Marriage and Dissolution Act, or attorneys fees or costs, the parties shall exchange completed “Disclosure Statements” unless either party files a written objection with Court and shows good cause why such exchange should not be required.  Each party shall serve the completed “Disclosure Statement” by mail or delivery upon the other party not later than thirty (3) days after service of the pleading seeking relief or not later than seven (7) business days prior to a hearing, whichever first occurs.

(c) Sanctions for Failure to Comply

Failure of a party to timely serve the “Disclosure Statement” shall subject the non-complying party to such sanctions as the court deems appropriate, including all sanctions available under Illinois Supreme Court Rule 219.  Failure to comply shall not be sufficient cause for a responding party not in compliance to obtain a continuance of the hearing.

(d) Certificate of Service

The completed “Disclosure Statement” should not be filed with Clerk of the Circuit Court, unless ordered by the Court.  Each party shall file with the Clerk of the Circuit Court a Certificate of Service of the “Disclosure Statement” upon the other party.

(e) Discovery

In pre-judgment and post-judgment proceedings, a party shall serve the other party with a completed “Disclosure Statement” before seeking discovery pursuant to 735 ILCS 5/2-201 et seq., unless otherwise ordered by the Court for good cause shown.

(f) Application to Joint Simplified Dissolution

Paragraph 13.3.1(a) shall not apply to Joint Simplified Dissolution proceedings brought pursuant ot 750 ILCS 5/451 et seq.

(g) Time Limits

In the event a party posits an objection based on personal or subject matter jurisdiction, the time for service of the “Disclosure Statement” shall be tolled pending the Court’s ruling.  The Court may extend or advance the time for service of the Disclosure Statements, or excuse service pursuant to good cause shown, or upon the written stipulation of the parties filed in the proceeding.

13.3.2 Proof of Income

(a) In all proceedings where a Rule 13.3.1 Disclosure Statement is required, each party shall serve upon the other party, together with the Disclosure Statement, copies of the party’s last two (2) calendar years’ filed individual, partnership and corporate federal and state income tax returns, the most recent pay stub showing year to date earnings and deductions there from, or if year to date information is not provided by the employer, the five (5) most recent pay stubs, and records of any year to date additional income not reflected in the pay stubs.  Where a party has not yet filed a federal or state income tax return for the prior calendar year, the last filed year’s return shall be served upon the opposing parties as well as all W-2’s and 1099’s received necessary for preparation of the current year’s return.

(b) The time for delivery of the aforesaid proof of income documents shall be tolled pursuant to Rule 13.3.1(g).

(c)The Certificate of Service required to be filed by Rule 13.3.1(d) shall include a description of the proof of income documents served with the Disclosure Statement.

     The disclosure statement, along with the specified income information, is required to be completed and exchanged by the parties in pre-judgment proceedings within 30 days of the service of the initial pleading or the respondent’s appearance, whichever comes first.  While previously it was the duty of the petitioner to serve a bland asset disclosure statement on the respondent, the current rule eliminates this burden; it is now mandated that both parties must serve a completed discloser statement on the other party in a timely manner with no initial request required.
    
The most substantive changes to the mandatory disclosure rules for Cook County are:

1.   the elimination of the “Asset” and “Financial” disclosure statements and their replacement by the single “Disclosure Statement,” Cook County Form CCDR 0604A;

2.   mandatory disclosure now automatically applies to certain post-judgment proceedings detailed in Rule 13.3.1(b).

3.   the requirement that a completed disclosure statement be served on the other party before any discovery may be sought pursuant to 735 ILCS 5/201, et seq.; and

4.   The requirement that income records be produced along with the disclosure statement prior to any request for documents pursuant to Supreme Court Rule 214.

Mandatory Disclosure in DuPage County

     Eighteenth Circuit Court Rule 15.01.3 governs mandatory disclosure in DuPage County divorce litigation.  The rule provides:

     RULE 15.01.3 MANDATORY DISCLOSURE

     A.   Mandatory Good-Faith Disclosure

1. Within sixty (60) days of the filing of the defendant’s general appearance or a responsive pleading in ay proceeding for dissolution of marriage or legal separation, each party shall serve upon all parties entitled to notice the completed Comprehensive Financial Statement in the form established by these rules.  Each party shall file with the Clerk of the Circuit Court within seven (7) days thereafter a certificate of compliance and service, certifying the Comprehensive Financial Statement has been completed and setting forth the date on which the completed Comprehensive Financial statement was served upon the opposing party.  The Comprehensive Financial Statement shall not be filed with the Clerk of the Circuit Court.

2. In (a) post-judgment domestic relations cases and in (b) post-judgment parcentage cases where both parties are represented by private counsel, when any party is seeking to establish or modify the issues of support, maintenance or contribution to college expenses, whether temporary or permanent, the pleading and answer shall incorporate an affidavit containing the information specified in Items I through VI of the Comprehensive Financial Statement established by these rules.  The information required by the Comprehensive Financial Statement shall not be filed with the clerk, but shall be provided to counsel simultaneously with the pleading.

3. If a party is unable to complete any portion of the Comprehensive Financial Statement, he or she shall indicate his or her inability to do so by answering “unknown” to each such specific item, and shall so certify on the last page of the Comprehensive Financial Statement pursuant to 735 ILCS 5/1-109.

4. If any request for temporary relief is made prior to the expiration of sixty (60) days from filing of Respondent’s appearance or responsive pleading, a preliminary Comprehensive Financial Statement, without corroboration documents, shall be attached to the request for relief, and the responding party shall provide a preliminary Comprehensive Financial statement to the moving party and the court not less than two (2) court days prior to hearing.  Income, expenses, assets and liabilities as requested in Section I, II, III and V of the Comprehensive Financial Statement shall be provided, with sufficient particularity to permit a meaningful hearing on the temporary relief sought.

B. Corroboration Documents – With in the same time provided for service of the Comprehensive Financial Statement, every party shall produce all corroborating documents in support of the allegations of the Pleadings and the Comprehensive Financial Statement or required affidavit.  The corroborating documents shall be produced whenever a party has such documentation, or whenever a party can obtain such documentation upon reasonable effort from other sources.  Examples of such corroborating documents are bank statements and cancelled checks; account statements for bank, money market, mutual fund, brokerage, IRA, 401(k), certificate or other types of accounts; credit card statements; and loan documents.

The income-corroborating documents shall include (but not be limited to) copies of the prior three (3) years federal and state tax returns (including all schedules and supporting documents) or tax returns filed since the last order regarding support, whichever is less.  If the tax returns are not yet filed, then copies of all the most recent W-2s, 1099s and other proof of income, including the most recent pay-stub, and the prior year’s year end pay-stud.

All corroborating documents shall be labeled and indexed to correspond to the paragraph of the Comprehensive Financial Statement to which the document relates.  No formal discovery requests for this information shall be a pre-requisite to enforcement for non-compliance with this Rule.  Said documents shall not be filed with the Clerk of the Circuit Court, but shall be served upon each person entitled to notice under the Supreme Court Rules, with proof of service filed with the Clerk.

C. Duty To Update – It is the duty of each party and each party’s attorney to seasonably update and amend the Comprehensive Financial Statement or required affidavit, and corroborating documents, with last update due at least seven (7) days before trial.  Such updates to or amendments shall not be filed with the Clerk of the Circuit Court, but shall be served upon each person entitled to notice under the Supreme Court Rules, and with proof of service filed with the Clerk of the Circuit Court.

D. Sanctions For Non-Compliance – Upon motion by any party, the court may impose such sanctions for violation of these DISCOVERY RULES IN FAMILY LAW CASES as are provided in Illinois Supreme Court Rule 219.  Failure to maintain corroborating documents after filing or receipt of a pleading covered by these rules shall be prima-facie evidence of non-compliance.  The Court shall consider a party’s compliance or non-compliance with these rules in the allocation of attorney’s fees and costs pursuant to 750 ILCS 5/508.

E. Additional Discovery – A party may make additional non-duplicative discovery requests in accordance with the requirements set forth in the Illinois Supreme Court Rules and Illinois Code of Civil Procedure.
F. Opting Out – The parties may opt out of the requirements of this Rule 15.01.03 by written agreement filed with the Clerk of the Circuit Court.

Mandatory Disclosure in Lake and McHenry Counties

     Nineteenth Circuit Court Rule 11.02 governs mandatory disclosure in Lake and McHenry Counties.  The rule provides:

11.02 (Amended) AFFIDAVITS OF PARTIES AND PRODUCTION OF DOCUMENTS

     In all proceedings involving application for attorney’s fees, costs, maintenance, child support, or any modification of the aforesaid orders, the applicant for such relief shall serve notice pursuant to Supreme Court Rule 11 of the hearing on the application.  The applicant shall serve on all parties entitled to notice a financial affidavit in the form approved by the Court.  Any party responding shall serve his or her financial affidavit, prior to the scheduled hearing or upon order of the court, on all parties entitled to notice.  Proof of serving the affidavit shall be filed on the date set for hearing on the application.  The applicant and any other party filing an affidavit shall have sufficient copies of the affidavit in court to provide them to all who appear on the date of the hearing.  The Respondent’s failure to serve an affidavit shall not be grounds for a continuance.

     On the day set for hearing each party shall produce the following financial documents:

     a.   the party’s last two (2) paystubs;

b.   the party’s last three (3) federal income tax returns filed;

c.   the party’s records of any additional income not reflected in their paystub.

Mandatory Disclosure in DeKalb, Kane, and Kendall Counties

     Sixteenth Circuit Court Rule 15.05 governs mandatory disclosure in DeKalb, Kane, and Kendall Counties divorce litigation.  The rule provides;

AFFIDAVITS RELATING TO INCOME AND EXPENSE

(a) Every pleading seeking to establish or otherwise affect issues of support or maintenance, whether temporary or permanent in nature shall be accompanied by an affidavit as to income and expenses in substantially the form attached hereto as Exhibit 1.

(b) Said affidavit shall be attached to and filed with the initial and responsive pleadings.  No affidavit prepared more than 60 days before the date of hearing or pre-trial shall be considered valid for purposes of that proceeding unless accompanied by a new affidavit stating that the party offering it represents there has been no substantial change in any of the information since the last affidavit was prepared.

(c) References in any pleading or order to an “Expense Affidavit” or “Income Affidavit” shall be presumed to refer to the document described herein.

(d) Failure by either party to submit the affidavit required hereunder shall be cause for such sanctions as the court may deem appropriate including but not limited to the striking of pleadings of the party not in compliance.

Practice and Procedure Under Various Mandatory Disclosure Rules

     It is clear that the goal of mandatory disclosure is to provide both sides with a capsulated version of the financial aspects of case at the onset of a case and immediately preceding any hearing relative to financials.  Despite their similar goals, each circuit’s requirements are different, including each having its own form of disclosure statement as can be noted from the examples above.

     The most onerous of the rules above is clearly DuPage County’s, which requires that a party not only complete a disclosure statement, but also produce all documents that corroborate the statement at the outset of the case.  Of course, this is also the only example shown in which the parties may opt out of the disclosure requirements.

     Therefore, prior to engaging in litigation in a particular country, it is important to review the court’s local rules to determine, what, if any, disclosure must be made at the onset of the case and how often and to what extent that disclosure must be updated throughout the case.

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