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Massachusetts Supplemental Probate and Family Court Rule 404: Charges of Adultery or Criminal Acts

[Disclaimer]

Whenever adultery, any specific criminal act with a third person or allegations derogatory to the character or reputation of a third person are charged in a complaint, cross-complaint, answer, statement of objections, or other pleading, it shall be stated therein that the name of the person, hereinafter called the co-defendant, charged with committing adultery with one of the parties, is known or is not known to the pleader, but such person shall not be named.

If the name of the co-defendant is stated as known, the party making such allegation, upon the filing of such pleading, shall deliver to the register a motion to amend the pleading by inserting the name of the co-defendant, and his residence, if known, and he shall also deliver to the register at least one affidavit, other than those of counsel, or a duly certified court record, with an affidavit of identity, supporting the allegation, or he shall present such motion to a judge at an ex parte hearing, as provided by statute.

The motion with the affidavit or affidavits and certificates shall be sealed up by the register until presented by him or by counsel to a judge, who shall inspect the same and hold such ex parte hearing, if any, as he may deem proper, and shall grant the motion if he finds probable cause has been shown that the allegation is true.

If the motion is allowed, it shall be filed and an entry shall be made on the docket, "Motion to insert name of co-defendant allowed," and the affidavit or affidavits and certificates shall be sealed and returned to the register to be held for the inspection of parties, including the co-defendant and counsel of record, but for no others except by order of the court.

If the motion is denied, it shall be sealed by the judge with the affidavit or affidavits and certificates and returned to the register, to be held subject to the order of the court, and the register shall enter upon the docket, "Motion to insert name of co-defendant denied."

If the co-defendant is unknown at the time of filing the complaint or other pleading, but becomes known while the matter is pending, a motion shall thereupon be delivered to the register and further proceedings had as hereinbefore provided.

This rule shall be applicable to separate support and divorce proceedings.

Effective July 1, 1975. As amended December 14, 2011, effective January 2, 2012.

Comment: This rule restates Probate Rule 43.