Discovery During Divorce | Worcester Divorce Lawyers | Divorce Attorneys in Worcester, Massachusetts

Discovery

Discovery is the process by which parties to a lawsuit find out the facts about the case. Formal discovery uses the court’s rules and processes to accomplish this work. The scope of discovery in divorce cases is wide. Usually, if a question has something to do with the marriage, children, property, debt, income or expenses, you can ask it and it will have to be answered.

Discovery is a two-way street, and each side must produce documents and records and respond to questions. Watch out if your spouse is a doctor, dentist, lawyer, accountant, financial consultant, stockbroker, real estate agent, store or factory owner or independent contractor. Hiding assets is relatively easy for this group. You will need a skillful, savvy attorney and maybe a private investigator or forensic accountant to dig out the truth.

It is always preferable to approach these matters in a spirit of cooperation with opposing counsel. We find that this sort of cooperation reduces the time required for the discovery phase of your case.

While there are many discovery devices – or tools – available to a litigant, none may be used until the party complies with Rule 410 (Mandatory Self-Disclosure). Except as otherwise agreed by the parties or ordered by the court, each party shall automatically deliver to the other within 45 days from the date of service of the summons the following documents: Federal and state income tax returns for the past (3) years, bank account statements for the past (3) years, the (4) most recent pay stubs from each employer for whom the party worked, documentation regarding the cost and availability of health insurance coverage, statements for the past (3) years for any securities, stocks or bonds, copies of any loan or mortgage applications made within the past (3) years and copies of any financial statement prepared by either party within the last (3) years.

Upon completing this mandatory requirement, parties can make formal requests for information by means of the following procedures:

Interrogatories: These are detailed written questions that you and/or your spouse must answer under oath to the best of your ability.

Depositions: The most common discovery method, a deposition is the oral testimony of a witness taken under oath before trial. The basic rule is that the questions asked must address themselves only to information that is relevant to the case or to discovering further relevant facts. To get up to speed, learn how to prepare for your deposition.

Production of Documents: This is a written request to the opposing party to produce a specific list of documents at a specific date and time.

Subpoenas: You can get information and documents from people – and companies – who aren’t involved in a divorce, like banks and credit card companies, using subpoenas.

At times, a party may file a Motion to Compel Discovery. This motion is necessary when one spouse does not produce the answers or documents requested by the other within the time provided. Alternatively, the cantankerous spouse may object to providing such information, claiming that it is privileged or demanded with intent to harass. If the court finds for the moving party, it has the power to throw out (strike) the wrongdoer’s pleadings and award the moving party its attorney’s fees.

Financial Statements

As required by Rule 401 of the Probate and Family Court, each person involved in a divorce, separate support, paternity, modification, contempt or any other case involving alimony, child support or division of property, must file a financial statement at various times during the case. A financial statement must be filed shortly after a case begins, at certain times when one person requests a financial statement from the other person, whenever you are in court on an issue involving child support, alimony or division of property and when you are in court for a pre-trial conference or at trial (including a hearing on an uncontested case).

The most common mistakes on financial statements include estimating items and not designating as such somewhere on the form, guessing valuations, not disclosing all accounts, improper calculations of pension plans and not including collectibles and tangible property on your asset statement.

“In most domestic relations cases, the financial statement is the single most important document presented to the court,” according to one judge. Since the court’s involvement in divorce actions are – first and foremost – economic exercises, the court’s requirement for filing the financial statement is designed to allow the judge the ability to summarize, and provide a basis for comparison of, the parties’ respective economic capabilities and needs.

First impressions are important, and the parties’ financial statements are often the first thing that a judge looks at when hearing a case at a motion session, or at trial. If a statement includes blank spaces, or what are obviously estimates, or contains figures that are inconsistent or otherwise incredible on their face, this immediately gives the judge a strong indication that anything that its author has to say with respect to their finances should be taken with a very large grain of salt. In those cases, before the first word is even spoken, the judge already has serious concerns as to the credibility of the party who signed and filed such a statement. On the other hand, on those all too rare occasions when a litigant files a financial statement that is both comprehensive and comprehendible, this suggests to the judge that this person is to be taken seriously, and that his or her attorney is ready to proceed in a fashion which makes efficient use of the court’s time.