The Need for Information
Gathering information through discovery is an essential part of the divorce process. Even when both spouses want to resolve all issues amicably, some discovery may be needed to ensure a fair and equitable agreement – even if only to confirm the understandings and justifications that form the basis for your settlement proposal. Either spouse may need assurances about some of the basic facts before feeling comfortable in reaching a final agreement.
For example, before an agreement can be reached, each party must have a complete understanding of the marital finances, including the value of real estate, pension plans or other assets, wages, debts, expenses, costs of insurance, day care, school and a multitude of other items. Although both spouses may already have a good idea of the values of these items, confirmation is helpful to either spouse. Often once spouse has managed the finances prior to divorce and has a significantly better understanding of the family’s total financial picture. Through discovery, both parties have the opportunity to level the playing field. Its procedures are designed to uncover any and all information needed to resolve any issue regarding the divorce.
Interrogatories
Apart from mandatory financial required in Massachusetts, interrogatories are the most common form of discovery. These are written questions served upon one party by the opposing party. The questions are formulated by lawyers and are generally fairly standardized for the situation. In other words, all divorce cases will have a basic set of questions that are asked. Any unique situations require supplemental questions to be added to the basic set. The party served with the interrogatories must provide written responses under oath. If false information is willfully provided, the responding party is technically subject to the penalties of perjury, although perjury prosecutions are very rarely instituted out of this process. Nonetheless, any falsehoods given in the course of discovery may severely hurt the responding party’s status in the litigation, as his or her credibility will be seriously compromised with the judge.
Interrogatories can delve into any issue that is relevant to the divorce. Although the language of an interrogatory may be rather formal, the actual questions are quite basic. The most typical are:
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Where do you live?
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Do you own or rent? How many rooms are in your home, and how are the rooms used?
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Who lives in the home with you? Give the names and the relationship of each resident to you.
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Are you currently employed? If so, give the name and address of your present employer, the date you started working there, your duties on the job and your weekly pay.
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Does your employer provide you with any insurance? If yes, list each type and plan, together with the benefits to which you are entitled. Provide the nature and value of such coverage.
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Does anyone owe you any money? If yes, provide the name and address of each debtor, the amount of the debt, date of the obligation, when it will become due and conditions for repayment.
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Identify all checking accounts in which you had the power of signature within the past five years.
Interrogatories should be very detailed so as to maximize the amount of information obtained in response. Although Massachusetts has a 30 question limit, the questions can be carefully framed to elicit the important information sought.
It is not unusual to receive incomplete or evasive information in response to interrogatories. Although your spouse may have provided the substantive information to their attorney in response, the answers themselves are generally prepared by someone in that lawyer’s office who has experience in crafting responses to provide as little information as possible.
Depositions
Unlike interrogatories, which are reduced to written form and are submitted to your spouse for written response, depositions are conducted face to face, with attorneys asking questions of the witness. The person whose deposition is being taken is a “deponent.” If the deponent is your spouse, their lawyer will be present, and your lawyer will have the opportunity to ask him or her questions in greater detail than provided by interrogatories. If the deponent is a witness other than one of the spouses, they will be given the opportunity to have an attorney present, although that is often not necessary if the deponent is simply being asked factual questions about the two parties to the divorce, their finances, or other matters that have no significant bearing on the deponent. The deposition generally takes place in one of the two lawyer’s offices, and no judge is present. As with interrogatories, all questions asked at a deposition must be answered under oath.
Because the oath is given in person by a notary public, the deponent may take the obligation to tell the truth more seriously than her or she did when answering interrogatories. This obligation is usually reinforced by the attorney who is asking the deposition questions in a brief introductory series of questions that are asked of the deponent. For example, after a few comments about the nature of a deposition, the lawyer may ask the deponent something along the lines of, “Do you understand that you are giving testimony here today that is equivalent to testifying in a courtroom? Do you understand that you have taken an oath to tell the truth?” Such questions are designed to reinforce the obligation to tell the truth, and when asked by a skillful attorney, will usually have the effect of slightly intimidating the deponent, which is exactly what is intended.
Although the deponent will likely have been “prepped” by their attorney in a pre-deposition session where the attorney coaches them about what is likely to be asked and how to respond, one of the primary advantages of a deposition over other forms of discovery is that the deponent is expected to answer questions on the spot, without the benefit of a private conference with their attorney after every question and before every answer.
Generally, depositions can be taken from any person who has direct knowledge about a contested issue in the divorce like the bookkeeper of a company who calculates the payroll who may be deposed in order to ascertain more information about the circumstances of a supposed reduction in income.
Subpoenas
Any type of financial support, be it child support or alimony, can be a sticky situation in Massachusetts when it comes time to do the numbers in the courtroom. This is true whether the calculations are done by agreement to the figures or whether they are achieved after a hearing on a motion to set child support or a Complaint for Modificaiton.
One thing you can do to help yourself out if you know the bank used by the opposing spouse or the mother or father of your minor child is to subpoena the records from his or her bank for a period of twelve months. This will give you a good idea of his or her financial picture and whether or not any misrepresentations were made on their financial statement that is required in all family court matters.
Keep in mind that you will incur some minimal out-of-pocket expenses (constable fees, witness fees, etc.) in order to get this done. Banks aren’t always so cooperative either. Bank of America and Sovereign Bank, for instance, have a policy of notifying the account holder of any subpoena for information before they will release it. This sometimes conflicts with the production of the documents because a court date may come and go before the bank will release the information. This of course leaves you having spent your money on the effort and the subpoena only to be left holding the bag while the bank flouts state law.
There are several other benefits to subpoenas beyond just getting financial documentation. The lawyers at The Massachusetts Family Law Group have subpoenaed phone records from cellular providers (who is your spouse texting or talking to on their cell phone?), transponder records from the Mass Pike (is your child’s mother or father really at a business meeting when they’re supposed to be helping with the children?), and credit card statements (who’s buying what?) to assess issues relating to discovery and the marital estate.
Expert Witnesses
Experts are often employed to determine certain facts. Those experts may be jointly agreed upon by the parties, which can save on the cost of having several experts testify at trial. However, where that is not possible, each side may hire an expert to contest an issue and require their testimony at trial.
Aside from custody and parenting-related issues, which is by far the most important issue to be decided in a divorce proceeding, the most common dispute has to do with the worth of various assets that are to be divided upon the conclusion of the divorce. To resolve this type of issue, you may need to obtain an expert opinion. Common experts include:
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financial planners to determine future economic circumstances
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business evaluators to value businesses
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real estate appraisers to value real estate
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personal property appraiser to value furnishings and other assets
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vocational evaluator to determine earning capacity
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psychologists to testify to mental health issues
Any expert to be used in a court proceeding will be required to prepare a report stating their findings and conclusions. The expert may then be deposed or asked to render a follow-up report to more specifically address certain issues or address new issues. Eventually, the expert will testify in court if the parties are unable to reach an agreement based on the expert’s report.
Some experts are no more than a hired gun. There is a network of such experts who, for a fee, will testify to virtually any set of facts. The courts are generally aware of who these hired guns are, and often will disregard or minimize the testimony from these types of people.
If you are contemplating divorce or are currently involved in the process, undoubtedly you fear failure and the unknown. You are not alone. If you don’t know where to start or what to do, contact us.
Throughout Western Massachusetts, our divorce lawyers and family law attorneys zealously represent clients in Hampden, Hampton, Franklin and Berkshire counties.
If you anticipate a court appearance in Springfield, Northampton, Greenfield or Pittsfield, call (800) 910-DIVORCE or contact us for a no-obligation consultation.