Serve him divorce papers or use mediation?

Asked over 1 year ago - Ashland, MA

Is there any legal advantage over blindsiding my husband with divorce papers (adversarial approach) vs. telling him verbally that I want a divorce and going together to a professional mediator (cooperative approach)? I realize that mediation would likely be less expensive than having our lawyers duke it out. We have one child and a single family home.

Additional information

I'm concerned he may be hiding/moving money around in his personal accounts. Will serving papers ensure that this activity stops?

Attorney answers (5)

  1. Howard M Lewis

    Pro

    Contributor Level 20

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    Answered . I am sorry that you are going through this, my answer specifically addresses the caveat you mentioned in the last portion, in that if you feel he is hiding money it is critical to file a complaint and either call him and ask him to accept service immediatley or have the constable on stand by to serve him the same day you have the summons which will invoke the automatic financial restraining order and help protect your assetts. Absent that, i always suggest that you be collaborative and a good attorney can do that and it may be cheaper than mediation with the right counsel. take care.

    Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to... more
  2. Philip W. Mason

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    Contributor Level 18

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    Best Answer
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    Answered . If your husband is moving money and closing accounts then a filing for divorce is not going to blindside him. There are advantages to filing immediately: 1) there is an automatic stay which is actuated by the filing and prohibits either party from dissipating or annexing marital assets of making material financial changes, 2) filing opens the door to mandatory disclosure of all financial assets and income streams and discovery which can flush out hidden income and assts, 3) it signals to your husband that you are serious about the divorce and that you will exercise your legal rights in obtaining a fair and equitable divorce.

    I would suggest that before filing you confer with an attorney (first consult is usually free). You need to develop a better understanding of your legal rights and the procedural elements of a divorce action. You may in the end decide there is enough cooperation between you and your husband to attempt mediation, but you will do much better in mediation if you have educated yourself first. Mediators focus on forging an agreement, they do not represent the interests of either party.

    This is not legal advice and is not intended to create an attorney-client relationship. You should speak to an... more
  3. Melissa Anne Levine-Piro

    Contributor Level 14

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    Answered . I think you should first consult with an attorney so that you fully understand the divorce process and your options. If after careful evaluation you decide a divorce is what you want then I would proceed with filing a divorce complaint. As the previous answers stated, once you file the complaint, an automatic restraining order is issued which prohibits either of you from transferring/concealing property or assets, incurring further debt etc.... Also, I think it is important to note that just because you file a divorce complaint does not mean you are precluded from mediating or settling your divorce is a collaborative way.

    Melissa Levine is a licensed attorney in Massachusetts. All answers are based on Massachusetts law and should not... more
  4. Robert Winford Carpenter

    Contributor Level 13

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    Answered . Serving papers will cause an automatic restraining order on moving assets, etc. and it need not be adversarial if you think an agreement can be worked out. I would be happy to speak with you about that, I always try to broker an agreement as part of my representation but if he is hiding assets, etc. you need to protect your interests.

  5. Jessica M Walsh

    Contributor Level 9

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    Answered . I agree with the other attorneys who have answered this question. I would also like to point out that mediation is not always less expensive than hiring a lawyer and either filing a complaint or filing a joint petition for divorce. Mediation can be successful for two people who share an equal type of bargaining power, but it is not right for everyone. If cost is the only factor in your potential decision to mediate, I would do some more research and talk to legal professionals in your area to get a better sense of the divorce options available to you. Hiring lawyers does not necessarily mean you and your husband will fight through the divorce process, there is an option that allows for the two of you to file a joint petition for divorce and use lawyers to assist you in crafting a separation agreement that will work for everyone involved.

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