As if there are not enough things to think about when beginning the divorce process, it is imperative that parties preserve evidence, even when merely the prospect of divorce litigation is present. Thus, the duty to preserve evidence is triggered when there is probable, likely or reasonably anticipated litigation. See Shimanovsky v. General Motors Corp. 181 Ill.2d 112, 121 (1998) (stating that “a potential litigant owes a duty to take reasonable measures to preserve the integrity o relevant, material evidence.”) Of course, being served with a summons and complaint for divorce unambiguously gives rise to this duty, but so does telling your spouse that you are planning to file for divorce.
This means that in Illinois, parties are required to preserve documents that may be relevant to the issues to be raised in the divorce action. If they do not, it may result in the court finding of spoliation of evidence, leading to sanctions against the party, the party’s attorney, or both. Spoliation of evidence is defined as the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding).
Since Illinois Supreme Court Rule 201(b)(1) requires “full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party, including the existence, description, nature, custody, condition, and location of any documents or tangible things,” it would be advisable to have an attorney create a well-drafted Notice to Preserve Evidence to be properly served on your soon-to-be-ex-spouse.
"This blog is for informational purposes only and is not intended to create an attorney-client relationship. It is recommended that you speak to an attorney licensed in your jurisdiction before relying on the information in this blog."