Discovery in a family law case is essential in order to determine the nature and value of the marital estate. The parties’ mutual exchange of basic financial information is mandated by the Supplemental Rules of the Probate and Family Court, Rules 401 and 410. Financial statements, which detail the parties’ income, expenses, assets and debts, must be exchanged within forty-five (45) days of the service of the summons in the action. In addition, the parties must produce documents for the past three years, including but not limited to tax returns, paystubs, bank statements, retirement account statements, and loan/mortgage applications. The rules reflect the fact that spouses have a fiduciary duty to each other. Further discovery may be necessary and proceeds upon formal request to the other party.

Temporary orders concerning custody and support are typically obtained at or near the inception of a family law case. As temporary orders often remain in place during the pendency of a case, their importance should not be underestimated. Temporary orders play a particularly critical role in custody disputes because they can impact the “status quo” which existed prior to the filing of a Complaint for Divorce. For example, a parent who spends increased time with a child pursuant to a temporary order may then be able to demonstrate at the time of trial that he/she is prepared to parent the child with such an increased time-share on a permanent basis.  For that reason, it is important to prepare a motion with supporting affidavits or a detailed opposition with competing claims for relief in order to provide the court with the admissible evidence it needs to make a sound decision in setting support or determining custody on a pendente lite basis.

The cases filed in the Probate and Family Court, and the documents they contain, are open to public inspection. The court, however, has the authority to impound a file, or selected documents in it, pursuant to the Massachusetts Trial Court Rule VIII, Uniform Rules on Impoundment Procedure.

The Uniform Rules on Impoundment Procedure (URIP) govern impoundment of otherwise public case records that are filed in civil and criminal proceedings in each Department of the Trial Court. Case records are presumed to be open to the public, unless they are impounded or sealed as a matter of law, or impounded by a court order.

Trial Court Rule I.

When a file, or a portion of it, is impounded, the impounded documents are kept separate from the open file and are unavailable for public inspection. The only individuals who can view impounded documents are the court, clerk, authorized court personnel, attorneys of record and the parties to the case, unless otherwise ordered.

In order to impound a file, the court must find that good cause exists.

In determining good cause, the court shall consider all relevant factors, including, but not limited to, (i) the nature of the parties and the controversy, (ii) the type of information and the privacy interests involved, (iii) the extent of community interest, (iv) constitutional rights, and (v) the reason(s) for the request. Agreement of all parties, interested nonparties, or other persons in favor of impoundment shall not, in itself, be sufficient to constitute good cause.

Trial Court Rule 7.

Orders of impoundment are not common. When they are issued, they are narrowly tailored, encompassing only those documents for which good cause to impound has been demonstrated.

You started a company, grew it, and sold it. You took the substantial proceeds of sale and invested them. Then you fell in love. You got married. Now you’re getting divorced. Your soon-to-be ex says he/she is going to take it all – or at least half. Is that possible?

In Massachusetts, the court may assign to one party in a divorce proceeding all or part of the assets of the other acquired prior to marriage. “In addition to or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other …” Massachusetts General Laws Chapter 208, Section 34. The term “estate” encompasses all property to which a party holds title, whenever and however acquired, and includes property obtained by a party before marriage.

Whether the court will divide premarital assets, or their appreciation in value during the marriage, is dependent on the facts of the case, including the length of marriage, the parties’ respective contributions to the marital partnership, whether a spouse contributed economically or non-economically to the asset, and the parties’ ability to obtain future income and assets, among other factors.

So, yes, the claim can legitimately be made but whether it will be successful is dependent on the parties’ circumstances and, as always, the arguments made in court.

On Monday, you inherit a million dollars.  On Tuesday, your spouse files and serves a Complaint for Divorce.  Do you get to keep the million dollars?

In Massachusetts, the court has broad discretion in determining which assets belong to the marital estate and how they should be divided.  Neither the date of acquisition nor the manner in which title is held necessarily determines whether an asset is to be included in the estate.  Rather, the concept of marital property in Massachusetts, as defined by statute as well as applicable case law, is expansive.  “Upon divorce … the court may assign to either husband or wife all or any part of the estate of the other …” Massachusetts General Laws, Chapter 208, Section 34.

In dividing the marital estate, the court is required to consider various factors:  “… the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, and the amount and duration of alimony, if any. …” Massachusetts General Laws, Chapter 208, Section 34.  While a mere expectancy under a will may be considered by the court as an opportunity for future acquisition of capital assets and income, a vested inheritance may be assigned upon divorce.

So, would the million dollars be included in the marital estate?  Most likely, yes.  Would you be allowed to keep it? Arguments could be made for both sides depending on the facts:  For example, did you receive the inheritance after six months of marriage or after 20 years?  Does your spouse expect to receive a substantial inheritance? Did you or your spouse incur debt in reliance on the anticipated inheritance? Did you participate in any activities for which you were not adequately compensated or due to which you lost opportunities (to the detriment of the marital estate) and, as a result, received the lump sum inheritance? Is your spouse financially self-sufficient?  When did you separate – five years prior to your receipt of the inheritance or on the day you were served? Did you and your spouse rely on an income stream generated by the million dollars or access the principal? Presumably not since the inheritance was received twenty-four hours prior to the filing.

The answers to these questions do not necessarily resolve the issue in dispute, nor is any one determinative, but they may form the building blocks of an argument.  An equitable division of the marital estate is the objective of the Probate and Family Court and, taking into account the parties’ facts and circumstances, the court will endeavor to do just that.