When dividing a marital estate or resolving custody issues in a divorce, one expects the spouses to seek financial information and evidence of one another’s conduct during the marriage. Sometimes, however, painting a complete picture of a spouse’s financial worth and marital behavior requires input from other individuals and entities. This post examines third party discovery in divorce. This post also discusses the most effective tools experienced family law attorneys use to get relevant information from them.
Discovery is a process that occurs between the start of a case and trial. The process involves the exchange of evidence between parties to a case. State and court rules govern the discovery process.
As part of the discovery process in a divorce, divorcing spouses must make certain disclosures within 45 days of service of a divorce complaint and summons. During this timeframe, Massachusetts Probate and Family Court Rule 401 mandates the parties exchange complete and accurate financial statements. The financial statement court form lists each party’s assets, liabilities, income and expenses. Each party signs his or her respective financial statement under penalties of perjury.
Another Probate and Family Court rule, Rule 410, describes other information each spouse must disclose within these 45 days. In part, this information includes the three most recent years’ state and federal income tax returns of the individual. Additionally, the spouses must produce other applicable documents. Among others, these documents may include: pay stubs; health insurance coverage information; three-years of joint and individual bank account statements; pension plan statements; and, loan and mortgage applications.
The Rules of Domestic Relations Procedure followed in Massachusetts Probate and Family Courts are either identical to or closely track the Commonwealth’s Civil Procedure rules. These rules specify how spouses can obtain information about each other through discovery. Discovery tools may include, but may not be limited to, interrogatories, requests for production of documents, admissions, depositions, and third-party subpoenas.
Interrogatories are a set of questions answered in writing under oath. Interrogatories are helpful in gathering information early in the case that can lead to the use of additional discovery tools later.
Regarding requests for production of documents, this discovery tool does just that: asks a party to turn over to the other side certain documents. The party served with such a request may have to produce relevant writings, photographs and other documents.
Spouses also can make requests for admissions under the discovery rules. The recipient of a request for admissions can admit or deny a statement of opinion of facts under oath in writing. Admissions simplify issues in a dispute before trial. They also may help determine the genuineness of specific documents.
Additionally, a party may need to give an oral deposition. This means the party would answer questions under oath and in the presence of a court reporter. A deposition creates a written transcript of a party’s testimony.
Discovery tools can be used to get information from individuals other than the spouses in a divorce proceeding. These individuals are known as third parties and the process is known as third party discovery.
Rule 45 of the Massachusetts Rules of Domestic Relations Procedure permits subpoenas to third parties. Subpoenas are usually intended to yield relevant documents. The recipient of a subpoena may be made to appear, give testimony, and bring with him or her documents related to the proceeding. Subpoenas are a less expensive way to get documents. A more costly alternative to a subpoena is divorce lawyers arguing in court about whether a spouse must produce financial documents, for example.
Which third parties commonly receive these discovery requests in divorce cases? An example of a potential third party is a financial institution a divorcing spouse uses. Other examples include the employers and creditors of the spouses. The rules may require these third parties to provide relevant information.
Interrogatories may lead to information about third parties, as well. Family law attorneys often use interrogatories to discover the facts and opinions held by expert witnesses retained by opposing counsel. For example, interrogatories may be used to identify an expert who may be called to testify at trial. Such experts might include forensic accountants, valuation experts or mental health professionals. Or, one party’s lawyer may obtain the anticipated testimony of the expert through interrogatories. The lawyer also may obtain a summary of the expert’s basis for reaching his or her opinions.
In some instances, a third party may become part of a divorce proceeding. In a 2017 Arizona case, DiPasquale v. DiPasquale, for example, an ex-wife pursued unpaid alimony from her ex-husband. Her former spouse had remarried. So, the ex-wife brought a third-party complaint against her ex-spouse’s new wife. Unlike Massachusetts, which provides for equitable distribution of the marital estate, Arizona is a community property state. The Arizona Court of Appeals allowed the ex-wife to join her ex-husband’s current wife as a party to the case. Accordingly, the ex-wife could try to collect the unpaid alimony by making claims against the community property of her ex-husband and his second wife.
If you have questions about third party discovery in divorce or other family law issues, contact us. You may schedule a free consultation online (click here) with our experienced attorneys at Turco Legal. If you prefer to schedule a consultation by phone, call (866) 995-6663. We will respond to your phone call promptly.