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Massachusetts Mediation and financial disclosures

I am very open to the idea of mediation prior or in place of a typical divorce. My husband, however, although he says he will go along with mediation, has been in charge of the money and accounts for the 12 years of our marriage. Honestly, I'm not sure if I trust him to disclose everything in a fair way. So my question is what safeguards are in place in the mediation process to make sure that my husband will disclose everything. I know this sounds bad and maybe it means we should not be thinking about mediation. I'm sure an attorney can find out everything if we go the usual route of court divorce. What do you think? Thanks.

 
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Disclosure of assets and finances in MA mediation

All mediators have different approaches, but they will begin by establishing rules that allow both parties to trust each other for the purpose of reaching an agreement.  If you and your husband are unable to get to that point, then mediation may not work for you. However, I believe most couples can make it work.

The Family court will require the parties to sign, "under the pains and penalties of perjury" a Financial Statement, which is then filed along with the Separation Agreement.  If you and your husband can agree on a divorce mediator to hire, she will ask you both to complete and sign a Financial Statement before any agreement is finalized.  She will also insist that each party have full access to all relevant financial documentation, including filed tax returns for the past several years.  All of this disclosure is required because Separation Agreements contain language in which both parties acknowledge that they have fully disclosed all financial information to the other.  If your husband lies or fails to disclose relevant financial information, then the Separation Agreement may be nullified based on fraud and, in that case, your husband will have some explaining to do to the judge.

If you believe you need additional protection, there is nothing preventing you from hiring a divorce attorney to advise you on the mediation process and to review any agreements before you sign.  Hope that helps.

 

Financial Information Disclosure

Perjuring oneself is a serious crime One only needs to look at the recent Roger Clemens and Barry Bonds trials to see how serious. In the divorce and separation context, a mediation agreement is submitted to a judge to approve as a divorce decree. Similar to prenuptial agreements, these agreements are only valid if they are 1) fair and reasonable., 2) there has been full disclosure, and 3) they were entered into voluntarily.

If a party fabricates a financial statement, the validity of the agreement can be challenged. Massachusetts courts have broad equitable powers to ensure that each party gets a fair shake. In other words, if you later find out that your husband had 100K in a Swiss bank account that he had been hiding from you, a court will undoubtably be peeved that he concealed this information, but will also consider whether this money is part of the "marital estate" or whether it was money he received as part of an inheritance or had acquired before marriage. If so, it would likely not be part of the marital estate and you would not be entitled to it anyway. However, most assets are usually determined to be part of the marital estate and are divided equitably (in the absence to an agreement to the contrary) by the courts. In the present case, although property distribution cannot be modified at a later date, evidence of fraud or deceit can render it null and void and allow a court to use its equitable powers to make the property distribution "fair."

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