DISCOVERY & HIDDEN ASSETS
Discovery is the legal mechanism designed for gathering information about either party to the divorce action. During discovery in Massachusetts, there is an initial mandatory disclosure stage, in addition to the numerous other discovery tools that are commonly used to gain information from, or about, the other party.
When discovery is done correctly, one can determine what arguments the other party intends to present to settle, or at trial, and prepare a better defense. In uncontested matters, discovery can be waived, but it is important to recognize the common tactic (some call it divorce trickery) of one party suggesting a less contentious approach – only to avoid the scrutiny of discovery (the real truth).
Initially, both parties must comply with Rule 410 re: Mandatory Self-Disclosure. Here, each party shall deliver to the other within 45 days from the date of service of the summons the following documents: three years worth of bank statements, tax returns, retirement account statements, loan or mortgage applications, etc.
Beyond this, the following discovery tools are available:
Interrogatories: This written list of questions is sent to the opposing side to be answered under the pains and penalties of perjury.
Admissions: This written list of facts or allegations is directed at the other side. The receiving party is asked to either admit to or deny each allegation on the list. If the Admissions are not responded to within the time frame allowed, they are deemed admitted.
Request for Production: This discovery tool is used to obtain documents that you may feel would benefit your case. Our attorneys typically review employment records, cell phone records, a recent credit report, Fast Lane transponder records, recent credit card statements, etc. to extract relevant information. To view a portion of our typical document request, go here.
Depositions: During a deposition you will obtain sworn testimony from the opposing party and/or any witness involved. Any information provided during a deposition can be used in court should your matter become contested and go to trial. To view a partial list of questions from a recent deposition, go here.
Failures to Provide Discovery
The penalties related to a failure to respond to discovery or to appear at a deposition may be severe. The opposing party may file a Motion to Compel discovery and seek sanctions related to the failure to cooperate. To view a sample Motion to Compel Discovery,
go here.
Additionally, severe sanctions may include establishing or limiting facts related to a case without the benefit of explanation or rebuttal. The Judge may disallow a party from presenting evidence or testimony where discovery was not provided in relation to the matter. The court may also award attorney’s fees to the party who did not comply with discovery.
Hidden Assets
Unfortunately, once divorce is initiated, many individuals (either personally or through their companies) will do whatever they can to preserve what they know or the whereabouts of money or certain assets. Oftentimes, spouses maintain secret accounts or engage in other financial activities throughout the course of their entire marriage. If these hidden assets are not exposed, one spouse is certain to obtain an unfair settlement.
Our attorneys work diligently to uncover potential hidden assets. Along with our working relationship with forensic experts, we commonly review and analyze the following:
Tax returns: They’re often the best place to start. We search for inconsistencies in income, the existence or recent dissolution of trusts, partnerships or other real estate holdings. When it comes down to it, most litigants would rather come clean in a divorce case and not risk the chance of misleading the IRS for fear of penalties, fines or even prison.
Business ownership records: In a family business situation, corporate returns often show a change in salary, excessive personal expenses charged to the company, excessive retained earnings, or a “friend” being placed on the payroll who agrees to return the money paid to him or her after the divorce is final.
Expense accounts: These accounts are often abused when companies give employees a great deal of leeway in their expense account reporting. Cross checking between expense disbursements and bank deposits may indicate a pattern of abuse if the deposits exceed legitimate business expenditures.
Children’s bank accounts: These accounts are often opened as a custodial account for a minor child with the intent of hiding assets as well. Interest may not be reported as income on tax returns, and no return is filed for the children.
Former employees: The savvy litigant will seek deposition testimony from former employees to determine the circumstances leading to their departure from the company. Many times, information relating to distrust, improper financial activity, etc. is easily obtained from this disgruntled source.
As another part of divorce planning, our attorneys encourage litigants to utilize search engines and become actively involved in their case. In the case of family businesses, talk with employees: how is the business doing? Is inventory higher or lower than the past? Are there more or fewer employees? At minimum, note the absence of routine business documents that used to be present in the home. Where are the bank statements and cancelled checks? Are bank balances gradually diminishing?
If you don’t just want to divorced, but NEED to get divorced, call (800) 910-DIVORCE or contact us now.
The family law attorneys at Massachusetts Flat-Fee Divorce Attorneys provide legal advice and services for people seeking an uncontested resolution to their divorce.
If you need assistance with a contested divorce, contact The Massachusetts Family Law Group for a no-obligation consultation.