Mandatory Discovery Expanded to Include Separate Support and Paternity Actions

Effective May 1, 2009, Supplemental Probate and Family Court Rule 410 will now require mandatory self-disclosure in Paternity and Separate Support cases similar to that already required in Divorce cases.

Under the old Rule 410, parties in divorce cases are required to, within 45 days after the date of service of the Summons, serve on the other party specific documents designed to disclose the basic financial information necessary to settle the case. This includes tax returns for the past three years, last four (4) paycheck stubs, bank account statements, health insurance documentation, retirement account statements and more.

Under the new Rule 410 effective May 1, 2009, parties in Divorce and Separate Support cases are required to, within 45 days after the date of service of the Summons, serve said documents (tax returns for the past three years, last four (4) paycheck stubs, bank account statements, health insurance documentation, retirement account statements, etc.). In addition, new Rule 410 requires parties in Paternity cases to produce tax returns for the past three years, last four (4) paycheck stubs, and health insurance documentation, within 45 days of service.

The old rule was enacted to save parties valuable time and energy filing discovery requests for documents that are likely necessary in every divorce case. Unfortunately, the failure of the old rule to include paternity and separate support cases meant that we still had to file the requests in those cases (sometimes just requesting all documents required under Rule 410).

The new rule expands this convenience and is a welcome change, which will hopefully save lawyer's time and client's money.

Divorce or Long-Term Separation: A Comparison.

According to a recent New York Times article, more couples are staying married in long-term separations instead of getting divorced.

There can be some advantages to staying married, even if separated. For some, their religious or family obligations make divorce impractical. For others, financial considerations can warrant staying married. If a couple continues to share finances, it can often be beneficial (at least for one of the parties) to stay married. But there are risks as well.

In Massachusetts, there is no such thing as a legal separation. This means that if you remain married, even if separated, then there are certain obligations and liabilities that continue. Although there is an action that allows for support in a separation (called a Complaint for Separate Support, Custody and Visitation), this action deals only with the issue of support, custody and visitation for parties living apart. A Separate Support action does not separate assets or debts, and does not address the ongoing obligations, such as joint liabilities.

Depending on the reasons that two people are staying together, long-term separation may make sense, but if your marriage is in reality broken down, you should at least consult with an attorney to know what effect long-term separation could have on your legal rights and obligations. As a simple example, property division and spousal support obligations can be significantly different based solely on the length of the marriage. If you are separated but remain married for a long period of time you could therefore end up with a completely different resolution if divorce was truly inevitable.

What do you think of Hampshire County's "Special Procedure's for Cases Involving Children"

On April 7, 2010, the Chief Justice of the Probate and Family Courts in Massachusetts, Paula M. Carey, signed Standing Order 1-10: Special Procedures for Cases Involving Children. That order sets out the details for a pilot program in the Hampshire Division of the Probate and Family Court. The pilot program is intended to provide special services and requirements related to the resolution of child-related issues in any case involving children (such as Divorce, Separate Support, Paternity, Support/Custody/Visitation, Modification, Contempt, Guardianship and Termination of Parental Rights cases).

The order requires, among other things, that attorneys and parents/care-givers attempt to solve parenting related problems before seeking the assistance of the court, and to conduct themselves in a way that recognizes the unique issues involved in child-related cases.

More specifically, the order requires that parties and their attorneys participate in an "Introductory Meeting", no later than 45 days after the filing of Answer and/or prior to any Motion hearing. Essentially, the court is requiring a 4-way (similar to that required prior to a Pre-Trial) to try and force parties to work out parenting issues prior to presenting them to the Court.

The order also encourages people to seek the assistance of other professionals as necessary to assist in the proper development of parenting and care-giver plans.

These requirements will increase initial attorney's fees and costs to clients. The benefits to the children, however, could be substantial by focusing early on how a court case (such as a divorce case) affects the children, and trying to address these issues early.

For further information on this program, its origins and its goals readThe Origins of a Child Focused Family Court Model. written by Gail L. Perlman, the First Justice of the Hampshire Division of the Massachusetts Probate and Family Court. The article is available on page 3 of the Spring 2010 issue of the Family Mediation Quarterly.