Burns & Levinson LLP

When a marriage becomes irretrievably broken, both spouses generally agree that a divorce is necessary.  However, some divorces are contested by one party, which may make the process more difficult and lead to prolonged negotiations and delay the ultimate resolution.  What can make things even more difficult is when one spouse refuses to even respond or engage in the divorce process.

When a spouse is dilatory or refuses to participate in the divorce process, here are some helpful tips:

  1. Service

The first hurdle in any divorce process is actually getting the process started.  Once a Complaint for Divorce is filed, the Summons and a copy of the Complaint for Divorce needs to be served upon the other party.  This is typically done by having a Constable or Sheriff deliver the Summons and Complaint for Divorce to the other spouse.  Once the Summons and Complaint for Divorce are served on the other spouse, the Original Summons, along with a Certificate of Service signed by the person who hand-delivered the Complaint, is returned to the Court for filing.  After the Summons is filed with the Court, the case is ready to proceed and the Court will likely issue a notice of a hearing.

If a spouse’s location is unknown or if a spouse attempts to avoid service of the Summons and Complaint for Divorce, Massachusetts Rule of Domestic Relations Procedure 4(d)(3) provides that the spouse who filed for divorce (the plaintiff) may file a motion in the court seeking to allow service of the Summons and Complaint for Divorce on the other spouse (the defendant) by alternate means.  If allowed by the court, alternate service may be made by publishing a copy of a notice in a newspaper and by mailing a copy of such notice by registered or certified mail, or by other means ordered by the court.  While a spouse may think they can run from service, they can’t hide from a notice put in the local newspaper for all to see.

  1. Discovery

Once the Summons, along with proof of service, is returned to the Court, the next step is to conduct any necessary discovery to determine the nature and scope of the marital estate, including assets, liabilities, income, and expenses of the parties.

Supplemental Probate and Family Court Rule 401 provides that each party to a divorce action shall file with the court and shall deliver to the other party within 45 days from the date of the service of the summons, a complete and accurate financial statement showing the assets, liabilities, current income and expenses of both parties and the children involved in the case.   The financial statement is to be signed under the penalties of perjury by the party filing the same.

Supplemental Probate and Family Court Rule 410 provides that each party shall deliver to the other party within 45 days from the date of service the following documents:

(a) Last three years of tax returns;

(b) Four most recent pay stubs;

(c) Documentation regarding the cost and nature of available health insurance coverage;

(d) Statements for the past three years of bank accounts, securities, stocks, bonds, notes or obligations, certificates of deposit, and retirement account statements;

(e) Loan or mortgage applications made, prepared, or submitted within the last three years; and

(f) Copies of any financial statements and / or statement of assets and liabilities prepared by either party within the last three years.

In addition to the above mandatory disclosures, either party has the ability to conduct further discovery, including a Request for Production of Documents, Interrogatories, Request for Admissions, and conduct depositions

If a spouse fails to produce any mandatory disclosures or discovery requested of him or her, the other spouse may serve a Subpoena Duces Tecum (a subpoena seeking documents) directly to the bank, investment, or lending institution where the spouse has accounts to obtain the documents.  This is often the quickest and most reliable way of obtaining complete records of accounts, particularly when a spouse is dilatory or refuses to produce statements from his or her accounts.

Domestic Relations Procedure Rule 26(f) also allows a spouse to file a motion with the court to obtain an order compelling the production of the requested discovery, including the production of documents, answers to interrogatories, answers to admissions, and compel a party’s attendance at a deposition.  Domestic Relations Procedure Rule 26(g) provides that prior to seeking the court’s assistance in compelling a spouse to comply with any mandatory disclosures or discovery requests served upon them, the attorney for the affected party or non-party witness shall confer in good faith in person or by telephone in an effort to resolve the dispute.  If efforts to resolve the dispute are not successful, the spouse seeking the discovery may then move forward with filing a motion to compel the production of discovery with the court.  The party compelled to file such a discovery motion may also seek attorneys’ fees and costs from the non-producing party which was incurred as a result of that non-producing party’s failure to produce the requested discovery.

  1. Divorce Judgment

Unless a party has filed a Motion for Temporary Orders to seek interim relief while the divorce matter is pending, the first time the court will hear from the parties will likely be at a Pretrial Conference.  At the Pretrial Conference, the parties will outline for the court the outstanding issues that are preventing settlement.  If a spouse has not been cooperative with the divorce process, or perhaps has never even answered the Complaint for Divorce or participated in the divorce process at all, the spouse seeking to obtain the divorce should be prepared with a Proposed Judgment of Divorce at the time of Pretrial Conference.  If the non-moving spouse does not appear at the Pretrial Conference or the court determines the case is ripe for trial, the court may order the case to trial that day and thereafter enter a Judgment of Divorce.  While this is unusual, it is possible to obtain a divorce without the other spouse’s involvement if they outright refuse to participate in the divorce process.

While the divorce process is certainly quicker, easier, and less expensive if both parties are cooperative with the divorce process, the rules and procedures of the Family Court make it is possible to obtain a divorce even if the other spouse refuses to participate.

×