Massachusetts divorce lawyer Carmela M. Miraglia reviews how Discovery is Conducted in a Massachusetts Divorce Action in Step 7 of the Lynch & Owens Divorce Series.
In this edition of the Lynch & Owens Divorce Series, I will discuss what discovery is; when discovery occurs; what types of discovery exist; and how discovery is conducted in a Massachusetts divorce.
Table of Contents for this Blog
- What is Discovery in a Family Law Case?
- When Does Discovery Occur in a Divorce?
- Supplemental Probate and Family Court Rule 401 – Financial Statement
- Supplemental Probate and Family Court Rule 410 – Mandatory Self-Disclosure
- Other Discovery Tolls: Document Requests, Interrogatories and Depositions
- Requests for Interrogatories
- Does a Party Need an Attorney to Conduct Discovery?
What is Discovery in a Family Law Case?
According to Black’s Law Dictionary, discovery, in a general sense, is “the ascertainment of that which was previously unknown; the disclosure or coming to light of what was previously hidden; the acquisition of notice or knowledge of given acts or facts…”. In an action for divorce, the purpose of discovery is to identify and create mechanisms by which each party to the divorce either may or must disclose documents, or other things which may be in their exclusive possession or knowledge, to the other party, and which are necessary to the other party. In practical terms, discovery is the exchange of documents and other things relevant to the marriage and the divorce that the parties either may or must share with each other.
When Does Discovery Occur in a Divorce?
There is no question that a party needs to gather discovery to prepare for their divorce. Discovery does not occur in a single event, rather it occurs during the pendency of the divorce because different stages of the case often call for different forms of discovery. Generally, the first discovery “event” that occurs (and is frequently updated throughout the divorce) is the mandatory Supplemental Probate and Family Court Rule 401 Financial Statement. Next, the mandatory self-disclosure of Supplemental Probate and Family Court Rule 410; and finally the many other optional discovery mechanisms available to both parties during the pendency of the divorce action including: interrogatories; request for production of documents; request for admissions; third party subpoenas; and depositions.
Supplemental Probate and Family Court Rule 401 – Financial Statement
Under this Rule, the parties are required to provide to the court, and exchange with each other, an accurate, properly completed and executed Probate Court Rule 401 Financial Statement, which can be due as soon as 10 days after service of the summons and Complaint for Divorce occurs. Compliance with this rule is effectuated by completing one of two standard court forms: the Short Form or the Long Form. Which form a party completes is dependent upon that party’s gross annual income. If a party’s income is less than $75,000.00 annually, that party must complete the SHORT FORM financial statement, unless otherwise ordered by the court. Likewise if the party’s income is greater than $75,000.00 annually, they would complete the LONG FORM, which breakdowns the party’s income and expenses in greater detail.
Each party is also required to attach a copy of a current pay stub and their last year’s W2(s) to the financial statement. The financial statement is probably the most important document in your case, and as such, must be updated every time the parties go to court. The reason for this is because the financial statements are the primary documents used to assist the court and the parties in making decisions regarding child support, spousal support (alimony), and in the division of marital property as the statements outline the financial details about each party’s income, assets, and expenses.
Supplemental Probate and Family Court Rule 410 – Mandatory Self-Disclosure
This rule requires that the parties exchange copies of specific financial documents and information within 45 days of after service of the summons and Complaint for Divorce occurs. It is important that both parties have access to all of the important financial documents relevant to their case. This rule entitles each party to full disclosure from the other. Just as with the Supplemental Probate and Family Court Rule 401 Financial Statement, the information contained in these mandatory documents is very important when it comes to making decisions with respect to child support, spousal support, and the division of marital property.
Rule 410 also seeks to insure that neither party, in anticipation of or during the pendency of the divorce, has transferred, sold, encumbered or otherwise disposed of or hidden any marital assets. Indeed, it is the philosophy of the court that decisions with respect to finances and support should not be made prior to a full disclosure by both parties of their respective assets and income. The rule itself, which can be seen here, provides a comprehensive list of the specific documents that court requires each party to disclose as part of the divorce proceedings.
Other Discovery Tolls: Document Requests, Interrogatories and Depositions
Together with Rule 401 and Rule 410 discovery which is required (mandatory discovery) by the Probate and Family Court, there are many other discovery mechanisms available to be utilized by both parties (if needed). These mechanisms include: interrogatories; request for production of documents; request for admissions; third party subpoenas; and depositions. These are optional, that is to say they are not mandatory, and a party may use all, some or none of these mechanisms. Optional discovery is generally used to obtain any additional information a party may need that was not provided by the mandatory discovery rules.
Requests for Production of Documents
Requests for production of documents are dictated by Massachusetts Rules of Domestic Procedure Rule 34. Through an “RPD” request, a spouse can can require the other party to produce documents, or provide access to electronic records or physical property (in most cases, the RPD is seeking copies of records). Generally speaking, a party must comply with Rule 410 before serving the opposing party with an RPD. Upon receiving an RPD, a party generally has 30 days to produce the requested records. If a party has just been served with a Complaint for Divorce, he or she will have 45 days from the date of service to respond to the RPD. Notably, a response to a RPD requires a formal pleading in which the party producing records specifies what records he or she has produced and provides any objections to producing certain records.
Requests for Interrogatories
A request for interrogatories is dictated by Massachusetts Rules of Domestic Procedure Rule 33. The time limits associated with interrogatories match those of RPDs, however, instead of producing records, the individual must provide sworn “answers” to the interrogatories. In short, a request for interrogatories is a series of questions (or requests for specific information) that the recipient must respond to under oath. Most attorneys will tell you that drafting and answering interrogatories requires a good deal of skill, where a poorly drafted interrogatory can be evaded with a vague answer, and an ill considered answer can have serious repercussions later in a case.
Depositions are dictated by Massachusetts Rules of Domestic Procedure Rule 45. A deposition is essentially an out-of-court hearing in which an attorney questions a witness under oath. A transcriber is present at the hearing to record and then produce a transcript of the deposition. Depositions tend to be costly, but highly effective methods of discovering evidence, and are particularly valuable in cases headed to trial.
Subpoenas to Third Parties
Subpoenas to third parties (generally seeking records) are also dictated by Massachusetts Rules of Domestic Procedure Rule 45. Document subpoenas to banks and other financial providers are very common in Massachusetts divorce cases. In addition to being an efficient way to obtain complete records from non-parties, document subpoenas are also often less costly in terms of legal fees compared to filing a Motion to Compel to force an uncooperative spouse to provide records. (Many judges pay lip service to ordering non-cooperative parties to pay legal fees for discovery disputes, but in practice, such orders are both rare and tend to cover only a fraction of the actual fees incurred.)
Does a Party Need an Attorney to Conduct Discovery?
Discovery is often the most difficult part of a divorce case forpro se litigants to undertake successfully without the assistance of counsel.
Discovery is based on complex rules – taken from multiple sets of different rules – that must either be memorized or located, analyzed and followed. Along with trial, discovery is the area where a professionally trained divorce attorney has the greatest advantage over a pro se party or even a general practitioner. Although every party has the right to conduct discovery – including pro se parties – those attempting discovery without the assistance of an attorney should be prepared to hit the books and study how the complex web of discovery rules works.
About the Author: Carmela M. Miraglia is a Massachusetts divorce lawyer and Cape Cod family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.