The Importance of Discovery and Types of Discovery in Massachusetts Divorce Cases

  • By:Karpenski & Schmelkin

During the divorce process, the more information that you have about your spouse, the better you will be able to prepare your case. Some divorcing couples make the mistake of assuming that they have all of the information they need about their spouse. However, sometimes there are hidden assets, whether they were hidden intentionally or not. This is one reason why discovery in a Massachusetts divorce case is so important. It provides both spouses with a clear picture of the marital assets and liabilities, monetary or otherwise, and this information can be used to have fair discussions about alimony, child support, child custody, and property division. Read on for more information about the importance of discovery and the types of discovery in Massachusetts divorce cases:

What is discovery?

Per Massachusetts law:

“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” —  Massachusetts Rules of Domestic Procedure Rule 26(b)(1).

Essentially, discovery is the process of gathering any information that is relevant to the case and can help you build your case.

What are the types of discovery?

Discovery shall include:

  • Financial Statement: Within forty-five (45) days of service of the summons and complaint, the parties are required to exchange complete and accurate financial statements signed under the penalties of perjury.
  • Rule 410: Within forty-five (45) days of service of the summons and complaint, the parties are required to exchange financial documentation as provided for under Supplemental Probate and Family Court Rule 410.

To learn more about the mandatory discovery in Divorce and Family Law cases, please check out our blog on the topic, which can be found here.

Discovery may include:

  • Interrogatories: Written questions answered in writing and signed under oath by the opposing party. Limit of thirty (30) questions.
  • Production of Documents: Requests that the opposing party produce copies of documents relevant to the issues present in the divorce.
  • Depositions: Deposition subpoenas are served in a divorce and family law case for two (2) main reasons. A party may serve a deposition to obtain business records from the keeper of the records for businesses such as the opposing party’s employment records, financial records, or the Department of Children and Families or Police Records involving the parties and/or minor child(ren). A party might also serve a deposition subpoena to seek testimony from a potential witness, either a party or non-party, who has relevant information, on the case. Depositions can also be accompanied by a document request and are given orally under oath and transcribed by a stenographer.
  • Requests for admissions: Written requests for the opposing party to admit or deny a fact relevant to the case. Commonly used as a way to limit the contested facts and issues for trial for purposes of submitting a joint stipulation of facts.

Learn more about Massachusetts discovery tools here.

What is the discovery timeline?

In Massachusetts, discovery can begin as soon as the Defendant is served with the summons and compliant. Each type of discovery has set time frames for responses to the Requests. Generally, the Court will issue a Pre-Trial Order and Notice which shall schedule the case for Pre-Trial Conference and set a discovery deadline date. The discovery deadline date is generally on or before scheduled Pre-Trial Conference date so that the parties may have a substantial Pre-Trial Conference after the close of discovery.

What happens next?

After discovery is complete, the parties can have an informed settlement meeting and negotiate an agreement. Many times, after conducting thorough discovery, information will come to light which facilitate settlement.

Both spouses must comply with the discovery requests served upon him/her and provide the requested information to each other within the established timeframe. There are penalties for failing to respond to discovery and it will prolong the divorce process. Where a party fails to comply with a discovery request, the other party has the option of filing a motion to compel and in certain circumstances, the non-complying party may be responsible for the other party’s attorney’s fees and other types of the sanctions. Another common consequence of non-compliance with discovery requests is the possible continuance of the upcoming hearing court. It is not uncommon for the continued hearing date to be months out from the originally scheduled hearing date.

Discovery is an integral component of Massachusetts divorce cases. An experienced Massachusetts Divorce and Family Law Attorney can help you navigate the complexities of the discovery process in order to gather all of the information needed to build a compelling case.

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Posted in: Divorce