New Mass. Rules of Domestic Relations Procedure

Al Gauthier

Yes, the Probate's Domestic Relations rules of the court have changed again. These new rules became effective and are in use in Massachusetts courts at the present time as of December 1, 1997. A detailed description of the court's changes are in the Massachusetts Continuing Legal Education [MCLE] handbook entitled, "The New Rules of Domestic Relations Procedures (98-10.14-LR)" copyright 1998. The description provided below is only a summary of the major changes.

The most visible change was made to the Rule 401, the Financial Statement. If you will recall this form is used by the court to determine the current financial condition of the litigants going through the separation and divorce process. Now there are two different financial forms. One is the pink "Short Form" (2 pages) and is used by those litigants that have gross incomes of less than $75,000.00 per year. The other is the new lavender "Long Form" (8 pages) and is used by those litigants that have a gross income of $75,000.00 or more.

There are also two new schedules that may be added to these two forms (Short or Long Form). One schedule (lavender) is entitled "Financial Statement Schedule A" and is used to describe the "monthly self-employment or business income". The other schedule (lavender) is entitled "Financial Statement Schedule B" and is used to describe the "rent from income producing property." Again, these schedules are only attached to either the Short or Long Form if one is self-employed and/or has rental income property.

The "Short Form" is the court's old financial statement sheet but with a few updated items. Some added items besides the above mentioned new schedules include: attaching all W-2s and 1099 forms for the prior year; lawyer retainer amounts paid, fees incurred to date and anticipated total legal fees for the divorce process; and a statement by your attorney that your attorney has no knowledge that any information on your financial statement is false.

Rule 6(c), the service of serving motions was expanded from three days to seven days. All ex-parte (e.g. 209A, Restraint Order) motions must now have an affidavit from the alleged victim setting forth the nature of the emergency. If the judge allows the motion, the court (judge) must make written findings that an emergency exists and set forth the nature of the emergency. Rule 59(c), an opposing affidavit (e.g. from an accused father - his side of the story), if written (this is strongly suggested), must be served to the court two full days before the court hearing. All motions must have a "Proposed Order" detailing the itemized relief sought.

Rule 401, the Financial Statement is now automatically exchanged between the parties within forty-five days from the service of the divorce summons. In the past, each side had to petition the court with motions to effect the exchange of their financial statements. If the divorce process is already on-going, then financial statements must be automatically exchanged between parties no later than two business days prior to a court hearing.

If a separate demand for a financial statement is made, then a motion to the court entitled "Request for a Financial Statement" is submitted. The time allowed to produce the statement went from 48 hours to ten days. Sanctions for failure to comply are now mandatory under contempt of the court and exceptions only granted for good cause. No further requests for additional financial statements may be made within 90 days of the prior request. The financial statement is available only to the parties, attorneys, court, registers, and members of the Probation Department and the Massachusetts Department of Revenue.

Rule 401 mandates that certain financial documents be exchanged between the parties within 45 days of the service of the summons, unless the court orders otherwise or the parties agree differently. The documentation which must be made available initially or supplemented afterward includes the following:

State and federal tax returns for the past 3 years, supporting documentation, personal and business returns, this includes but not limited to, W-2s, 1098, 1099, and K-1 statements, and schedules C and E.
Bank statements for the past 3 years for accounts held by the parties, or held for the benefit of them, or for the benefit of the minor children of the marriage.
The four most recent paycheck stubs from each employer of the parties involved. Documents concerning the cost nature of available health insurance coverage.
Statements for the past 3 years for securities, stocks, bonds, notes, CDs, held by either parties or for minor children. Also included are statements of 401K and pension plans issued over past 3 years must be exchanged.
Copies of mortgage applications, which a party made, prepared, or submitted in past 3 years.
Copies of any financial statement of assets and liabilities prepared by a party within the 3 years prior to filing the divorce complaint.

New Rule 56(g) deals with the problem of affidavits made and submitted in "bad faith". The rule provides the court "shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavit caused him to incur, including reasonable attorney fees" whenever a judge is satisfied that an affidavit has been filed in bad faith. The imposition of sanctions under rule 56 does not preclude a finding of contempt against the offending attorney or party.

The new rules now permit "summary judgment" motions in a limited number of post-divorce proceedings. This new rule permits the court to increase the number of cases (e.g. pre-marital agreements, contempt actions or short-term marriages) and reduce the need to litigate some post-divorce controversies. This requires the moving party for "summary judgment" to file and serve an "Affidavit of Undisputed Facts" with evidentiary documents cited in the papers. The party opposing the summary judgment is to specifically admit or deny each factual item in the "Affidavit of Undisputed Facts" and has the option to motion an "Affidavit of Disputed Facts" stating additional facts with supporting material for the issue at hand. If the opposing party submits by affidavit a statement that opposing affidavits essential to his opposition are not available, this rule allows the judge to refuse "summary judgment", or allow a continuance, or enter other appropriate orders.

The court's "New Rules for Domestic Relations Procedure" for the first time includes an appendix of helpful guides for the Pro se (one who represents himself in court without a lawyer) litigant. In fact the new rules guide admits, "In many divisions of the Probate and Family Court pro se litigants are involved in more than half of the cases." The information provides assistance to pro se litigants and allows the courts to process cases more efficiently. The court recognizes that to have a viable and worthwhile pre-trial hearing it is necessary to provide education for the pro se litigant. The following guides are provided:

"A Pro se Guide to Divorce Pre-Trial Hearings in the Probate and Family Court"
"The Pre-Trial Memorandum: A Questionnaire for the Pro se Litigant in Cases Involving Custody, Visitation and Support"
"A Pro se Litigant Guide to Preparing a Divorce Pre-Trial Memorandum"

Also included in the guide is a section of many internet resource sites covering many subject areas such as: general resources, family lawyers, child custody, child support, child abuse, domestic violence, state and local practice, informative reading, for your clients, related resources, associations, mailing lists, and news groups.

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