Rules of Domestic Relations Procedure

Rules of Domestic Relations Procedure  Domestic Relations Procedure Rule 5: Service and filing of pleadings and other papers

Effective Date: 09/02/2003
Updates: Amended June 8, 1989, effective July 1, 1989 Amended October 10, 1997, effective December 1, 1997
Amended June 5, 2003, effective September 2, 2003

Table of Contents

(a) Service: When required

Except as otherwise provided in these Rules, or unless the court on motion with or without notice or of its own initiative otherwise orders, every order required by its terms to be served, every pleading subsequent to the original complaint, every paper relating to discovery required to be served upon a party, every written motion other than one which may be heard ex parte, and every written notice, notice of change of attorney, appearance, demand, brief or memorandum of law, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. No service need be made on any party in default for failure to appear except that any pleading asserting new or additional claims for relief against him shall be served upon him in the manner provided for service of summons in Rule 4 and except as otherwise provided in Rule 55(b)(2) with regard to notice of a hearing on the amount of damages.

Identical to Mass.R.Civ.P. 5(a) 

(b) Same: How made

Whenever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the register of probate. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at his office with his clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or if the office is closed or the person to be served has no office, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing. If notice of a hearing is given by service in hand delivered after 4 p.m., an additional day shall be added for purposes of computation of time under Rule 6(c). The time when the in hand service was made shall be reflected on the Certificate of Service.

(c) Same: Multiple defendants

The court, on motion with or without notice or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.

Identical to Mass.R.Civ.P. 5(c)

(d) Filing generally, and nonfiling of discovery materials

(1) Except as otherwise provided in Rule 5(d)(2), all papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter. Such filing by a party's attorney shall constitute a representation by him, subject to the obligations of Rule 11, that a copy of the paper has been or will be served upon each of the other parties as required by Rule 5(a). No further proof of service is required unless an adverse party raises a question of notice. In such event, prima facie proof of service shall be made out by a statement signed by the person making service, or by a written acknowledgment signed by the party or attorney served; and such statement or acknowledgment shall be filed within a reasonable time after notice has been questioned. Failure to make proof of service does not affect the validity of service.

(2) Unless the court, generally or in a specific case, on motion ex parte by any party or concerned citizen, or on its own motion shall otherwise order, the following shall not be presented or accepted for filing: notices of taking depositions, transcripts of depositions, interrogatories under Rule 33, answers and objections to interrogatories under Rule 33, requests under Rule 34, and responses to requests under Rule 34. The party taking a deposition or obtaining material through discovery is responsible for its preservation and delivery to court if needed or so ordered. Notwithstanding anything in this Rule 5(d)(2), any party pressing or opposing any motion or other application for relief may file any document pertinent thereto.

Identical to Mass.R.Civ.P. 5(d)

(e) Filing with the court defined

The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that a judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.

Identical to Mass.R.Civ.P. 5(e)

(f) Effect of failure to file

If any party fails within five days after service to file any paper required by this rule to be filed, the court on its own motion or the motion of any party may order the paper to be filed forthwith; if the order be not obeyed, it may order the paper to be regarded as stricken and its service to be of no effect.

Identical to Mass.R.Civ.P. 5(f)

(g) Information required

On any pleading or other paper required or permitted by these rules to be filed with the court, there shall appear the name of the court and the county, the title of the action, the docket number, the designation of the nature of the pleading or paper, and the name and address of the person or attorney filing it. In any case where an endorsement for costs is required, the name of any attorney of this Commonwealth appearing on the complaint filed with the court shall constitute such an endorsement in absence of any words used in connection therewith showing a different purpose.

Identical to Mass.R.Civ.P. 5(g)

Reporter's notes

(2003) The amendment to Rule 5(d) is in response to the amendment to Mass.R.Civ.P. Rule 5(d) Service and Filing of Pleadings and Other Papers. The amendment is intended to relieve the parties and court personnel of the burdens involved with the filing of interrogatories and answers with the court.

(1997) The amendment to Rule 5(b) allows for an additional day to be added for the purpose of computation of time if service is delivered in hand after 4 p.m. The amendment also provides that if service is made by in hand service it will be reflected on the Certificate of Service.

Downloads   for Domestic Relations Procedure Rule 5: Service and filing of pleadings and other papers


Updates: Amended June 8, 1989, effective July 1, 1989 Amended October 10, 1997, effective December 1, 1997
Amended June 5, 2003, effective September 2, 2003

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