Q. My ex took me back to court to modify our parenting plan only a year after our divorce trial. He never responded to discovery requests during the divorce, and he never got in trouble for failing to follow the rules. I sent document requests again. He again ignored them. Is there anything I can do differently this time without wasting a ton of money trying to compel him to produce information?
A. In a divorce, you cannot start issuing subpoenas for documents until you have exchanged self-disclosure documents under Supplemental Probate Court Rule 410. A modification is different – you do not need to wait to issue subpoenas. So, if there are documents you need, don’t waste the time asking him to produce, go right to the source for documents.
Get any medical or school records directly from the sources as they may support the fact that your children are doing well with the current plan and there is no need for a change.
You should ask him interrogatories if you have not yet done that. Ask a question looking for the details supporting each allegation he raised in his modification complaint. History promotes confidence he will not respond to your interrogatories. He has 30 days to respond so at about day 45, start the paper trail of asking when you can expect his answers. Once his answers are two months late, tell him you want to have a Rule 26(g) conference which is a prerequisite to filing a motion to compel discovery.
When he misses any agreed upon deadline reached during the conference or fails to engage in the requisite conference altogether, file a motion to compel his answers and your statement certifying your efforts to have the conference or if you did have one, stating the nature of what happened during it.
Present your motion to compel to the judge and ask that he be ordered to pay your fees as a sanction. In my experience, you often do not get sanctions on the first motion to compel. If he pushed this to trial before, he is likely to do so again. So, once you have your trial date, file a motion in limine asking the judge to prevent him from offering any evidence supporting the allegations in his complaint for modification as a sanction for failing to answer your interrogatories. If the judge allows that motion and they should, he has just lost his case.
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