Understanding Discovery

Understanding Discovery

Irrespective of whether you ultimately decide to settle your case or litigate and proceed to trial, discovery is crucial. Soon after a divorce commences, the attorneys for each spouse will engage in the process ofdiscovery.  Discovery is the legal term for exchanging information between spouses to effectuate complete disclosure of the information relevant to the pending case. During this process, all assets, liabilities and income will be identified and valued. The discovery process can be very demanding and time consuming.

In Massachusetts, the parties must be attentive to 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 procedural rules outline the requirements that each party has the duty to follow regarding initial discovery, including mandatory initial disclosures to the other party. Thediscovery process can be undertaken informally, through requests by counsel, or through what is known as formal discovery, utilizing requests for production, interrogatories, depositions and subpoenas.

Domestic Relations Rule 410 requires that both parties exchange mandatory discovery within forty-five days of service of the Divorce Complaint.  In addition, under Rule 401there 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. If you or your spouse’s salary exceeds $75,000 a year in gross income, you must complete the long form financial statement. The Short Form is required by the court when you or your spouse makes under $75,000 a year in gross income.

After mandatory disclosures have been produced by both parties, additional information may be gathered through other discovery methods including, but not limited to, the following::

  • Appraisal: A certified appraiser may be called upon to valueassets belonging to the couple.
  • Deposition: Each party has the opportunity to question the other party or other witnesses under oath before a stenographer who will record the testimony.
  • Interrogatories: 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.
  • Request for the Production of Documents:  A party can request the other party to produce documents that are in their possession, custody or control.
  • Subpoenas: individuals as well as institutions may be subpoenaed to provide or verify information such as an employer, and a keeper of records from a financial institution.


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