The New Mandatory Self-Disclosure Rule in New Hampshire's Family Division

Although its effective date was postponed, new Family Division Rule 1.25-A (Rule) will bring significant changes to the practice of family law in New Hampshire. The Rule requires parties to produce financial information shortly after the commencement of a family court proceeding, without waiting for discovery requests to be propounded.

The Rule was adopted as part of an ongoing effort to increase efficiency in the process of domestic relations cases. Compliance with this Rule should assist parties and counsel in avoiding many costly and time-consuming discovery disputes. By codifying the expectations of which types of information must be produced, the Rule creates a uniform approach to financial discovery. This Rule provides for the exchange of basic discovery early on in the case, which starts the parties off on a positive note because they are exchanging and sharing information rather than litigating contested issues. In domestic relations cases, the parties do not always have equal access to information about financial matters. Requiring mandatory disclosure may assist in leveling the playing field, allowing both parties access to information, which in turn should enable them to prepare for settlement discussions.

Understanding the practical implications of the new Mandatory Initial Self Disclosure Rule is extremely important for lawyers and clients. Because mandatory disclosure provides for the exchange of basic discovery necessary for the resolution of any case, it presents an opportunity to focus the divorce or other family law process to which the new rule applies, on cooperation rather than conflict. In addition to leveling the playing field by ensuring the exchange of basic information, it also encourages cooperation between counsel, not just for mandatory disclosure but for the exchange of other relevant discovery. The modeling by the attorneys in having their clients exchange information in a timely fashion under the Rule creates an environment where one is more likely to get other discovery by agreement. As Family Division Administrative Judge Edwin Kelly states:

The collaborative effort between the court and bar in producing the Mandatory Disclosure Rule will, we hope, result in an equally collaborative effort geared toward implementing the Rule. Members of the bar will be called upon to honor the intention of the Rule, which is to reduce the conflict and motion practice related to discovery in family cases. Over the years, conflict on these basic issues has consumed the time and resources of the bar, the court and, most importantly, the thousands of families whose cases are the subject of dispute in the state's family courts. It goes without saying that none of us can afford this unnecessary use of our limited resources, nor does it serve either the best interest of the families before the court or our system of justice to continue down this adversarial path.

Practice Tools and Tips

Mandatory disclosure streamlines and reduces cost for clients, and can dramatically reduce discovery issues that need to be litigated. In thinking about the practical application of the new Rule, the following may be helpful:

1. Explain the mandatory discovery rules as part of the initial consult, and provide the client with a copy of Rule 1.25-A. Many clients, even if they do not retain you immediately, will start gathering the necessary information for the initiation of their case. You should encourage them to do so. Being prepared will save them time and legal fees.

2. Immediately upon being retained, provide your client with a copy of Rule 1.25-A, even if you did so initially, with a detailed explanation of what they are required to produce and why. Make clear that this is mandatory! Explain the possible consequences for failure to comply, which, under the Rule, can be onerous. Clients are much more likely to comply with the Rule if they are explicitly told what they must produce and the purpose of providing those documents. Clients should also be told they have a duty to inquire. The fact that they do not keep their bank or credit card statements each month does not mean they do not have to produce those documents. They either need to obtain them online or make a request to the bank or other third party. This also holds true for information from employers, life insurance companies, or other third parties to whom the client may have to make inquiry. Some clients will prefer that you inquire, and you should have the client sign a release to obtain the information. Availability of Health insurance benefits in particular can be confusing. Although not specifically required by the rule, it may be helpful to have your client obtain a letter from his or her employer's H.R. Department explaining the available post-divorce coverage. In some cases, there can be a significant charge by third parties in order for them to provide requested documents. In those circumstances, have your clients alert you about this, to see if there is a way to share the cost between the parties. However, clients may have to incur some costs to obtain mandatory disclosure documents, so let them know this up front.

3. Create a mandatory disclosure compliance checklist allowing clients to check off easily what they have/have not provided and why, when they send you their responsive documents. Give clients a deadline for their response, explaining that you need time to review what they produce, ensure that it is complete, and have time to organize the documents, in order to send the information to opposing counsel. If the other party is pro se, send him/her a copy of the Rule along with a letter enclosing the same checklist you provided to your client. Ask him to provide his responsive documents by a date certain, and explain that your client will provide responsive documents in a timely fashion.

4. When you get the responsive documents from your client, review them carefully to be sure everything has been provided, and in complete form. For example, tax returns without supporting schedules are not sufficient. If anything is missing without explanation, follow through and find out why. Whether it is mandatory initial self-disclosure or other discovery, some clients need more assistance than others, either because they just do not understand what is being asked of them, they do not know how to obtain some of the documents or they are overwhelmed by the emotional stress of the divorce. You will have clients who resist providing documents, or even completing a financial affidavit. Providing your clients with guidance as to the Rule and its requirements, and giving them whatever assistance is necessary, is imperative for obtaining compliance under the Rule. If you are not going to be timely, let the other attorney know and obtain an extension of time to respond. Inform the other attorney that you are working with your client to comply with the Rule. Under these circumstances, you may want to send at least partial disclosure if you do not yet have all the information.

5. Consider a joint request or a joint subpoena if neither party is able to obtain documents required. The Rule provides for giving releases or other authorization for the exchange of information, but a joint request from counsel may be necessary in some cases, and is certainly the most cost-effective option.

6. Mandatory disclosure can result in the production of lots of paper. Consider the exchange of information on CD. However, be sure you properly protect any confidential information provided in this manner. Also, do not just keep a copy of the documents you sent in your computer files. Keep an actual and protected copy of the CD instead.

7. Create a mandatory disclosure response form to be signed by your client. This will be attached to the documents produced and outline what is attached, including dates covered by the documents (e.g., Big Bank checking account number xxx-___, statements dated Jan. 1-Dec. 1, 2011). This provides easy identification of what is being produced and what is missing. If documents are missing but are in the process of being obtained, or if you are endeavoring to obtain a document but are not sure you will be able to do so, include that in the response. Do not delay responding because one document is missing. You can always supplement as needed.

8. When providing your response, separate the documents by section (e.g., with colored paper or some other way) to distinguish the various components of mandatory disclosure and organize them chronologically by date. This is helpful to both counsel and the parties and is greatly appreciated. Sending a pile of disorganized and unidentified documents undermines the purpose of the Rule and the spirit of the NH Bar Association litigation guidelines. (Note that the NH Superior Court rules specifically identify disorganized production as a form of discovery abuse)

9. It can be difficult to get records in some cases, especially where a party is self-employed or pro se. If the records are not being produced under the Rule, consider a Motion to Compel. If you must file Motion to Compel mandatory disclosure, request attorney's fees and whatever other sanctions are appropriate and permissible under the Rule. However, indicate to counsel that if you receive the documents pursuant to the Rule by a date certain, you will withdraw your motion. If opposing counsel is having difficulty with his/her own client in obtaining the mandatory disclosure documents, or a self-employed or pro se party is being non-compliant, a motion makes clear that this is mandatory, and there are consequences, but that your goal is to obtain the documents and that you are giving them a final opportunity to comply.

10. Review your file regularly at crucial points in the case to ensure there is continuing compliance by both parties in terms of updating documents during the legal process when there are significant and material changes, as contemplated by the Rule. Update the disclosure checklist whenever the production is supplemented.

11. Although it is unlikely attorneys will totally opt out of mandatory disclosure, there are cases, for example, where you might consider and agree to a more limited disclosure than required by the Rule. If the case is one in which there is trust between the parties, or one of limited assets/liabilities, or if the parties are both well aware of their financial circumstances, the parties and counsel can agree on what actually needs to be produced. For example, there is rarely an opt-out with regard to tax returns or retirement statements, but if parties always had joint accounts, they may choose not to exchange the full range of bank statements but only the most recent statements. Before opting out in part or in full, ensure that the client understands the Rule and the consequences of any opt-out with respect to discovery and the impact upon his/her case. Any agreement to opt out either in part or in full should be in writing between the parties and counsel.

12. If you believe you need a protective order or confidentiality agreement in order to produce certain documents, draft the order or agreement and provide it to the other party for review to determine if you can reach agreement rather than litigate such an issue.

Conclusion

Mandatory disclosure builds trust between counsel and parties by showing that the parties and counsel can work together toward the common goal of information exchange and reciprocity. Contact the other attorney or party if you have questions, if something is missing, or if you do not understand a document that you received. Mandatory disclosure not only helps build relationships early on in the case, but it provides a basis for the parties and/or counsel to begin communicating about a case so they understand what is needed to bring a case to conclusion. Parties can agree to follow the mandatory disclosure rule even without benefit of the court process, in mediation or collaborative law. You may even wish to include this in a mediation or collaborative law process agreement.

Any new Rule can seem onerous; however the Mandatory Initial Self Disclosure Rule should be embraced as a mechanism for simplifying and expediting discovery and therefore moving parties closer to resolution with less cost and less conflict.

Jeanmarie Papelian is a trial lawyer in the Manchester, NH, offices of McLane Graf Raulerson & Middleton. She handles complex domestic relations disputes and is familiar with many forms of alternative dispute resolution, which some divorcing parties pursue instead of the court process. She is a trained neutral evaluator, collaborative divorce practitioner, marital mediator, and Chair of the Collaborative Law Alliance of New Hampshire. This article was originally published in the New Hampshire Bar Journal, March 2011.

Although its effective date was postponed, new Family Division Rule 1.25-A (Rule) will bring significant changes to the practice of family law in New Hampshire. The Rule requires parties to produce financial information shortly after the commencement of a family court proceeding, without waiting for discovery requests to be propounded.

The Rule was adopted as part of an ongoing effort to increase efficiency in the process of domestic relations cases. Compliance with this Rule should assist parties and counsel in avoiding many costly and time-consuming discovery disputes. By codifying the expectations of which types of information must be produced, the Rule creates a uniform approach to financial discovery. This Rule provides for the exchange of basic discovery early on in the case, which starts the parties off on a positive note because they are exchanging and sharing information rather than litigating contested issues. In domestic relations cases, the parties do not always have equal access to information about financial matters. Requiring mandatory disclosure may assist in leveling the playing field, allowing both parties access to information, which in turn should enable them to prepare for settlement discussions.

Understanding the practical implications of the new Mandatory Initial Self Disclosure Rule is extremely important for lawyers and clients. Because mandatory disclosure provides for the exchange of basic discovery necessary for the resolution of any case, it presents an opportunity to focus the divorce or other family law process to which the new rule applies, on cooperation rather than conflict. In addition to leveling the playing field by ensuring the exchange of basic information, it also encourages cooperation between counsel, not just for mandatory disclosure but for the exchange of other relevant discovery. The modeling by the attorneys in having their clients exchange information in a timely fashion under the Rule creates an environment where one is more likely to get other discovery by agreement. As Family Division Administrative Judge Edwin Kelly states:

The collaborative effort between the court and bar in producing the Mandatory Disclosure Rule will, we hope, result in an equally collaborative effort geared toward implementing the Rule. Members of the bar will be called upon to honor the intention of the Rule, which is to reduce the conflict and motion practice related to discovery in family cases. Over the years, conflict on these basic issues has consumed the time and resources of the bar, the court and, most importantly, the thousands of families whose cases are the subject of dispute in the state's family courts. It goes without saying that none of us can afford this unnecessary use of our limited resources, nor does it serve either the best interest of the families before the court or our system of justice to continue down this adversarial path.

Practice Tools and Tips

Mandatory disclosure streamlines and reduces cost for clients, and can dramatically reduce discovery issues that need to be litigated. In thinking about the practical application of the new Rule, the following may be helpful:

1. Explain the mandatory discovery rules as part of the initial consult, and provide the client with a copy of Rule 1.25-A. Many clients, even if they do not retain you immediately, will start gathering the necessary information for the initiation of their case. You should encourage them to do so. Being prepared will save them time and legal fees.

2. Immediately upon being retained, provide your client with a copy of Rule 1.25-A, even if you did so initially, with a detailed explanation of what they are required to produce and why. Make clear that this is mandatory! Explain the possible consequences for failure to comply, which, under the Rule, can be onerous. Clients are much more likely to comply with the Rule if they are explicitly told what they must produce and the purpose of providing those documents. Clients should also be told they have a duty to inquire. The fact that they do not keep their bank or credit card statements each month does not mean they do not have to produce those documents. They either need to obtain them online or make a request to the bank or other third party. This also holds true for information from employers, life insurance companies, or other third parties to whom the client may have to make inquiry. Some clients will prefer that you inquire, and you should have the client sign a release to obtain the information. Availability of Health insurance benefits in particular can be confusing. Although not specifically required by the rule, it may be helpful to have your client obtain a letter from his or her employer's H.R. Department explaining the available post-divorce coverage. In some cases, there can be a significant charge by third parties in order for them to provide requested documents. In those circumstances, have your clients alert you about this, to see if there is a way to share the cost between the parties. However, clients may have to incur some costs to obtain mandatory disclosure documents, so let them know this up front.

3. Create a mandatory disclosure compliance checklist allowing clients to check off easily what they have/have not provided and why, when they send you their responsive documents. Give clients a deadline for their response, explaining that you need time to review what they produce, ensure that it is complete, and have time to organize the documents, in order to send the information to opposing counsel. If the other party is pro se, send him/her a copy of the Rule along with a letter enclosing the same checklist you provided to your client. Ask him to provide his responsive documents by a date certain, and explain that your client will provide responsive documents in a timely fashion.

4. When you get the responsive documents from your client, review them carefully to be sure everything has been provided, and in complete form. For example, tax returns without supporting schedules are not sufficient. If anything is missing without explanation, follow through and find out why. Whether it is mandatory initial self-disclosure or other discovery, some clients need more assistance than others, either because they just do not understand what is being asked of them, they do not know how to obtain some of the documents or they are overwhelmed by the emotional stress of the divorce. You will have clients who resist providing documents, or even completing a financial affidavit. Providing your clients with guidance as to the Rule and its requirements, and giving them whatever assistance is necessary, is imperative for obtaining compliance under the Rule. If you are not going to be timely, let the other attorney know and obtain an extension of time to respond. Inform the other attorney that you are working with your client to comply with the Rule. Under these circumstances, you may want to send at least partial disclosure if you do not yet have all the information.

5. Consider a joint request or a joint subpoena if neither party is able to obtain documents required. The Rule provides for giving releases or other authorization for the exchange of information, but a joint request from counsel may be necessary in some cases, and is certainly the most cost-effective option.

6. Mandatory disclosure can result in the production of lots of paper. Consider the exchange of information on CD. However, be sure you properly protect any confidential information provided in this manner. Also, do not just keep a copy of the documents you sent in your computer files. Keep an actual and protected copy of the CD instead.

7. Create a mandatory disclosure response form to be signed by your client. This will be attached to the documents produced and outline what is attached, including dates covered by the documents (e.g., Big Bank checking account number xxx-___, statements dated Jan. 1-Dec. 1, 2011). This provides easy identification of what is being produced and what is missing. If documents are missing but are in the process of being obtained, or if you are endeavoring to obtain a document but are not sure you will be able to do so, include that in the response. Do not delay responding because one document is missing. You can always supplement as needed.

8. When providing your response, separate the documents by section (e.g., with colored paper or some other way) to distinguish the various components of mandatory disclosure and organize them chronologically by date. This is helpful to both counsel and the parties and is greatly appreciated. Sending a pile of disorganized and unidentified documents undermines the purpose of the Rule and the spirit of the NH Bar Association litigation guidelines. (Note that the NH Superior Court rules specifically identify disorganized production as a form of discovery abuse)

9. It can be difficult to get records in some cases, especially where a party is self-employed or pro se. If the records are not being produced under the Rule, consider a Motion to Compel. If you must file Motion to Compel mandatory disclosure, request attorney's fees and whatever other sanctions are appropriate and permissible under the Rule. However, indicate to counsel that if you receive the documents pursuant to the Rule by a date certain, you will withdraw your motion. If opposing counsel is having difficulty with his/her own client in obtaining the mandatory disclosure documents, or a self-employed or pro se party is being non-compliant, a motion makes clear that this is mandatory, and there are consequences, but that your goal is to obtain the documents and that you are giving them a final opportunity to comply.

10. Review your file regularly at crucial points in the case to ensure there is continuing compliance by both parties in terms of updating documents during the legal process when there are significant and material changes, as contemplated by the Rule. Update the disclosure checklist whenever the production is supplemented.

11. Although it is unlikely attorneys will totally opt out of mandatory disclosure, there are cases, for example, where you might consider and agree to a more limited disclosure than required by the Rule. If the case is one in which there is trust between the parties, or one of limited assets/liabilities, or if the parties are both well aware of their financial circumstances, the parties and counsel can agree on what actually needs to be produced. For example, there is rarely an opt-out with regard to tax returns or retirement statements, but if parties always had joint accounts, they may choose not to exchange the full range of bank statements but only the most recent statements. Before opting out in part or in full, ensure that the client understands the Rule and the consequences of any opt-out with respect to discovery and the impact upon his/her case. Any agreement to opt out either in part or in full should be in writing between the parties and counsel.

12. If you believe you need a protective order or confidentiality agreement in order to produce certain documents, draft the order or agreement and provide it to the other party for review to determine if you can reach agreement rather than litigate such an issue.

Conclusion

Mandatory disclosure builds trust between counsel and parties by showing that the parties and counsel can work together toward the common goal of information exchange and reciprocity. Contact the other attorney or party if you have questions, if something is missing, or if you do not understand a document that you received. Mandatory disclosure not only helps build relationships early on in the case, but it provides a basis for the parties and/or counsel to begin communicating about a case so they understand what is needed to bring a case to conclusion. Parties can agree to follow the mandatory disclosure rule even without benefit of the court process, in mediation or collaborative law. You may even wish to include this in a mediation or collaborative law process agreement.

Any new Rule can seem onerous; however the Mandatory Initial Self Disclosure Rule should be embraced as a mechanism for simplifying and expediting discovery and therefore moving parties closer to resolution with less cost and less conflict.

Jeanmarie Papelian is a trial lawyer in the Manchester, NH, offices of McLane Graf Raulerson & Middleton. She handles complex domestic relations disputes and is familiar with many forms of alternative dispute resolution, which some divorcing parties pursue instead of the court process. She is a trained neutral evaluator, collaborative divorce practitioner, marital mediator, and Chair of the Collaborative Law Alliance of New Hampshire. This article was originally published in the New Hampshire Bar Journal, March 2011.