You may not have the opportunity to choose the process for ending your marriage. Without notice, your spouse may serve a Complaint for Divorce and involve you unexpectedly in a lawsuit. You or your children may be physically, emotionally or sexually abused. You might suspect your spouse is concealing income or assets. You may have exhausted every possible resource to resolve issues amicably. In these circumstances and may others, litigation is the only viable process.
When used appropriately, litigation is a tool to ensure you have the personal and financial security you need. Choosing litigation results in court mandated safeguards, disclosures and oversight that will help you and Attorney Clapp access the information you need to make informed decisions. Attorney Clapp has over a decade of experience managing all aspects of litigation, including arguing Motions for Temporary Orders, taking and defending depositions, tracing income, valuing unique assets and businesses, and trial. She will stand beside you throughout the litigation, and, be the strength you need to endure the process. She will be your partner in developing a personalized strategy.
Here is an overview of key aspects of the litigation process:
Filing and Serving a Complaint
Litigation begins when one party files a Complaint and serves it on the defendant. Service happens two ways: a constable delivers a copy of the Complaint to the defendant’s last known address, or, the defendant can accept service by signing a document called the “Summons” in the presence of a notary.
Once the defendant receives the Complaint, they have a specified amount of time to file an Answer. At the same time, the defendant may want to file a Counterclaim for relief, or, assert Affirmative Defenses.
Automatic Restraining Order Against Assets
When a Complaint for Divorce is served in Massachusetts there is an “Automatic Restraining Order Against Assets.” This Automatic Restraining Order was created by a Supplemental Probate Court Rule, and, applies only to assets and income. Both parties are precluded from transferring assets to third parties, including their children, purchasing expensive assets, or things they would not normally acquire, or changing the beneficiaries on their accounts.
Motions for Temporary Orders
Once a Complaint has been served, either party can ask the Court to order temporary relief by filing and serving a Motion for Temporary Orders. For example, a motion for temporary orders can request implementation of a parenting plan, implementation of a child support or alimony order, assignment of certain expenses, such as the mortgage, or, assigning responsibility to pay marital debt.
After serving a Motion for Temporary Orders, there will be a court hearing allowing both parties to explain to the Court why they are entitled to the relief they’ve requested. Typically, parties do not testify and there are no witnesses at a Temporary Order hearing.
In most cases, once entered, Temporary Orders will be in place for the duration of the trial, and, can only be modified if there has been a meaningful change of circumstances.
Discovery is the process of gathering information that can help you and Attorney Clapp determine what is the best result for you.
When a Complaint for Divorce is served in Massachusetts, within 45 days the parties are each required to provide a signed Financial Statement that sets out their income, assets, liabilities and weekly expenses, and, provide certain mandatory discovery documents, including but not limited to three years of tax returns, recent paystubs, and three years of bank, retirement and investment account statements.
After the mandatory discovery is exchanged, you and Attorney Clapp will determine what, if any other, discovery is necessary. The types of discovery you and Attorney Clapp will decide to utilize will depend on the issues in your case.
There are a number of elements to the discovery process including the following:
- Depositions — questioning the other party, or, third party witnesses with relevant information under oath.
- Requests for Production of Documents and Things — requesting the other party produce documents or things for inspection.
- Requests for Answers to Interrogatories — requesting written responses to questions about issues relevant to the case in writing, signed under the pains and penalties of perjury.
- Requests for Admissions — requesting the other party to admit or deny certain facts in writing, signed under the pains and penalties of perjury.
- Keeper of the Records Subpoenas — requesting records from third parties.
The Probate and Family Court is a court of “next event scheduling.” This means that in most cases, at conclusion of every hearing, the next hearing is scheduled. This is the Probate and Family Court’s way of making sure cases proceed through the process and don’t get stuck.
After either a Motion for Temporary Orders, or, a Case Management Conference the Court will schedule a Pretrial Conference. At the Pretrial Conference, both parties are given the opportunity to present their best case to the Judge. Each party will file a lengthy memo, and, their attorneys will make an argument on their behalf about why the judge should see the facts and decide the case in their favor. After the parties’ lawyers’ presentations, the Judge will typically give feedback about she or he believes the case could be resolved without trial.
After discovery, the two parties will have an opportunity to discuss settlement, and, to try and resolve the issues without having a trial. If the parties are successful, they can present an Agreement for Judgment at the Pretrial Conference.
If the parties are unable to reach an agreement before the Pretrial Conference, the parties will reach an Agreement for Judgment after the Pretrial Conference and hearing the judge’s advice.
There are times when it is impossible to resolve the issues by agreement. In those circumstances, it is necessary to go to trial. At trial, the judge will hear the evidence presented by both parties through their own testimony, and, through the testimony of witnesses, review the documents that are entered as exhibits, and will make a decision.