What are the Rule 410 Mandatory Document Disclosures?

Photo of Carlos A. Maycotte

The Rule 410 Mandatory Self Disclosure provisions of the Supplemental Probate and Family Court Rules is one of the most basic, yet misunderstood, requirements of divorce litigants.

According to Rule 410, each party to a divorce or 209C action (or complaint for separate support), has to deliver a number of documents to the other party within 45 days of the service of the summons. Those documents include:

Income tax returns and supporting documents (e.g. W2s, 1099s, K-1s, etc) for the past three years.

The 4 most recent pay stubs.

Documentation relating to the cost and nature of available health insurance coverage.

Bank, brokerage, retirement, and other account statements for the past 3 years.

Copies of any loan or mortgage applications made within the last 3 years.

Copies of any financial statement and/or statement of assets and liabilities prepared within the last 3 years.

The process of collecting these documents can be laborious. Perhaps the most onerous part of this is the collection of account statements. Each party is supposed to collect as many as 36 statements for each and every account he or she has (fewer if the statements are provided on a quarterly or annual basis).

As much trouble as this is, the purpose of this exercise is understandable. By making these disclosures, each party gives the other party an opportunity to review and assess the hard, concrete data points underlying a financial statement and claims made by each party as to income and expenses. The tax returns alone provide a wealth of information regarding a family’s income, and the understanding that results from reviewing a party’s pay stubs and account statements can be of great utility when reviewing the financial circumstances of a particular case.

There is reasonableness to this process as well. Note that the first provision of the Rule states “Except as otherwise agreed by the parties…” These requirements can be curtailed and streamlined. For example, the parties might be comfortable exchanging only 12 months of statements, rather than 36.

To cite another common issue, the parties may wonder why they have to exchange statements for joint bank accounts, seeing as both parties have access to the same records. The same principle applies to joint tax returns, which married couples almost invariably file. Why then, go through this exercise?

If the parties are proceeding without representation, then there might be no need to do this. But if the parties have the assistance of counsel, their lawyers are going to want to look at the underlying documents, rather than proceed by relying only on the financial statements. Attorneys often spot issues or items on these sorts of documents that the parties missed or glossed over, and which could be relevant to the action. Typically, the party who handles the bulk of the finances will provide the tax returns or joint account statements, so that both lawyers can benefit from the documents.

There is obviously opportunity to conduct further discovery beyond that which is required by Rule 410. Note that the rule does not require parties to disclose their credit card statements. This is a curious omission. After all, many people charge many of their expenses on a credit card and then pay off that credit card from a checking or savings account. If you only scrutinize the bank accounts, all you would see is a line item showing a payment to a credit card company, rather than the individual expense items themselves.

And where financial circumstances are more complex, more documents may be needed – for example, the spouse of a business owner would want disclosures of the company’s financial records.

Compliance with Rule 410 can be laborious and time-consuming, but there is a good reason for its existence. The need for disclosures can be streamlined or expanded, depending on the circumstances of each individual case. At the end of the process, a party signing a divorce agreement needs to feel comfortable that he or she understood all of the financial circumstances and is comfortable with the disclosures that were made. Compliance with Rule 410 is an important step in that direction.


Fitch Law Partners LLP reports news and insights on complex litigation topics. Clients, colleagues and friends may receive The Fitch Briefs by signing up here.