The Basics of the Discovery Process in Massachusetts Divorce Cases

When deciding to pursue a divorce in Massachusetts, the parties must be aware of the discovery requirements and obligations imposed by the Rules of Domestic Relations Procedures, Supplemental Probate and Family Court Rule 410 and Supplemental Probate and Family Court Rule 401.  These are some of the procedural rules that set forth the requirements imposed upon each party to provide discovery, including some mandatory initial disclosures, to the other party so the parties can attempt to fairly divide the marital assets and debts. The following are some of the basic discovery requirements:

Supplemental Rule 401
Supplemental Rule 401 requires, except as ordered by the court, that each party in an action where financial relief is requested to file a financial statement with the court and the other party as part of the divorce proceedings.

There are two types of financial statement that are used by the Probate and Family Court, and it depends on your gross yearly income as to which form you must file.

1.         Long Form Financial Statement (commonly referred to as the “Long Form”)
If you or your spouse’s salary exceeds $75,000 a year in gross income, you must complete the long form financial statement. The long form is substantial, and it will take some time to fill out properly. This form will require you to provide proof of income from a variety of sources. For instance, you must disclose base salary information including any overtime you performed, tips you made, bonuses paid, or commissions from sales. In addition, information must be provided regarding self-employment, funds from disability or Welfare, and interest made on investment accounts. The Long Form also requires you to disclose your debts such as business expenses and deductions for household utilities and health insurance.

2.         Short Form Financial Statement (commonly referred to as the “Short Form”)
The Short Form is required by the court when you or your spouse makes under $75,000 a year in gross income. The short form asks the individual to provide information on income and weekly household expenses, plus provide proof of income such as W-2 forms or 1099 forms. The individual must also disclose any additional income such as inheritance or interest on any savings/investment accounts, and provide some limited information on assets and liability.

Supplemental Rule 410
Supplemental Rule 410 requires additional mandatory self disclosures and applies to both parties. In Massachusetts, the parties, except as otherwise agreed by the parties or ordered by the court, are required under Rule 410 to disclose within 45 days from the date of the service of the summons certain financial documents.  The financial documents that must be disclosed include federal and state income tax returns and schedules with all supporting documentation, the party’s 4 most recent pay stubs, health insurance documentation about coverage and costs, bank statements for the past 3 years, investment statements for past 3 years (i.e., IRA, bonds, stocks), loan and mortgage information, and copies of any financial statements and/or statements of assets and liabilities prepared by the party within the last 3 years of the parties’ divorce filing.  If the divorce is uncontested, the couple has the opportunity to waive this disclosure rule.

Additional Discovery Techniques
Upon completion of the mandatory disclosure, and should the divorce require litigation, there are methods to gather additional information that may be useful in ascertaining a fair and equitable distribution of the marital estate.  These include using the following discovery tools:

  • Interrogatories to other party: Each spouse is entitled to serve upon the other spouse questions to be answered under oath and in writing that could lead to discoverable information for the divorce proceeding.  These are usually drafted by the questioning spouse’s attorney prior to the trial to ascertain if the party has information that could be useful at trial.
  • Request for the Production of Documents to the other party:  After commencement of the divorce action a party can request the other party to produce documents that are in the possession, custody and control of the other party.
  • Deposition: Each party has the opportunity to question the other party or other witnesses under oath before a stenographer who will record the testimony.  The testimony can be used to discover additional information and be used at trial.
  • Subpoenas: A variety of institutions and individuals may be subpoenaed to provide or verify information such as an employer, representative from a financial institution, or any other party of interest.
  • Actuaries: These are used to value retirement and other benefits such as pensions.
  • Appraisal: A certified appraiser can be called upon to verify the worth of assets belonging to the couple.
  • Private Investigation: A private investigator may be used to verify information provided by one or the other spouse.

The information presented in this article provides some basic guidelines to help you understand the financial disclosure requirements and the basic discovery requirements in a Massachusetts divorce, however, they are not intended to be a substitute for legal representation.

John K. Vigliotti, Esq. contributed to this article.