Monday, September 7, 2015

Prepare for a divorce—create a household inventory

In most cases, people anticipate a divorce before it happens. While some actions taken before a divorce can receive an adverse reaction from a spouse, creating an inventory should not. Creating an inventory can be helpful in case you suffer an insurance loss such as fire, theft, or flood. An inventory can also be helpful in a divorce.

In a divorce the two spouses will have to divide the household belongings. Sometimes this occurs leisurely and sometimes in a rush. An inventory will make a split easier. If a court issues an order removing one party from the house having an inventory will make it easier for that person to receive a fair distribution of the household assets. If you are dividing items from memory you are likely to forget items that you care about.

Another benefit of having a household inventory is to reduce the potential for items to disappear. After a person who is out of the house takes their initial list of items it is much more difficult to obtain items from the house. That book that you received from your grandmother is likely to be thrown out if you don't retrieve it in the initial group of items. With digital photography you can incorporate photographs into your inventory.  By having a list you can designate items to retrieve later and avoid having them thrown out or sold.

The earlier you start the inventory the better off you are. It is also helpful to consult an experienceddivorce lawyer as early as possible. Both an inventory and a divorce lawyer can help you work through the difficult times created by a divorce.

Sunday, August 9, 2015

Natick Judge enjoins Macy's for shoplifting fines

Judge Douglas Stoddard, a District Court Judge in Natick, Mass. has enjoined Macy's from demanding that shoplifters pay a $500.00 civil fine to Macy's when they are caught by the store.  Massachusetts General Laws Chapter 231, Section 85R-1/2 states that shoplifters ". . . shall be liable in tort to the merchant for damages for not less than fifty nor more than five hundred dollars. . ."  Many stores claim that this law means that a shoplifter owes the store $500.00 if they are caught by the store.  The stores are wrong.  The law means that if the store sues shoplifters in court a judge may award civil damages of up to $500.00.  Macy's has no right to collect $500.00 until after a Judge awarded them damages.

Macy's had a practice of detaining shoplifters and telling them that "if they paid the $500 fine, they would not be civilly sued in court and some said they were told they would not be arrested."  In some cases, people paid the $500.00 and were then turned over to the police who arrested them.  When the cases came before Natick District Court, Judge Stoddard learned of the practices of the store and issued an injunction against the store.The Judge stated “I’m not sure if I have the legal authority to do what I’m doing, but I believe I do have the power to right what’s wrong.  I don’t think I’m asking for much.”

What Macy's was doing was not only wrong, it was criminal.  Massachusetts is a common law state.  This means that crimes exist that were created by English judges before the American Revolution.  Some of these crimes are still in existence.  Macy's actions constituted the common law crimes of compounding a crime and misprision of a crime.  In addition, their actions also constituted the statutory crime of extortion.  

Compounding a crime occurs when a person enters into  an agreement for one person to pay money in exchange for an agreement to not prosecute the crime.  In Massachusetts only the District Attorney or the Attorney General can agree that a crime won't be prosecuted.  Any other person who agrees that a crime won't be prosecuted is committing a criminal act.  If Macy's accepts money and agrees that a shoplifter won't be prosecuted then Macy's has committed the crime of compounding.

If Macy's, having agreed that a crime shall not be reported to the police fails to report the crime then they have committed the crime of misprision of a crime.  Every citizen has the duty to report crimes to the government.  In our society we don't prosecute people who merely fail to report crimes.  However, if a person has received money and then fails to report the crime then they may be prosecuted for misprision.  Compounding is the crime of making the agreement not to prosecute.  Misprision is the act of failing to report the crime.

When Macy's asked for money in exchange for not prosecuting the shoplifter, they committed the crime of extortion.  The elements of extortion are (1) a malicious threat (2) made to a named person (3) to accuse someone of a crime or to injure someone's person or property (4) with intent to extort money. Mass.G.L. c. 265, § 25.  This means that Macy's committed three separate and distinct criminal acts.  When they asked form money the committed extortion.  When they agree to not prosecute they committed compounding of a crime.  If they took the money and then failed to report the shoplifter they committed the crime of misprision.  

When settling a civil case that has the potential for criminal charges, parties want to eliminate the ability to be criminally prosecuted.  This can't be done without violating criminal laws.  When I have encountered this problem in my practice I have agreed to a "gag order" as part of the settlement.  A gag order typically states that neither party can talk about the facts of the case or the settlement without creating civil penalties.  However, I always include language that states that the gag order shall not apply if there is a duty to disclose the information including, but not limited to, disclosure to law enforcement officials.  This exception means that the gag order does not violate any criminal laws.  An attorney who understands the common law crimes should always include language of this nature.  

Macy's practice of demanding a civil penalty without a judgment from a court should cease immediately.  Since the cost of going to court is more than the potential $500.00 recovery this means that it is unlikely that any shoplifters will ever pay the civil penalty.  However, it also means that Macy's will stop violating criminal laws.   

Sunday, May 31, 2015

Cyber harassment can be very expensive.

The internet and social media has created new opportunities for people to harass and harm others. One person who used the internet to harass a neighbor found it very expensive as a Massachusetts court has issued a judgment of 4.8 million dollars for cyber harassment and another court found him and his wife guilty of criminal harassment and sentenced them to jail.

Two neighbors, Johnson and Lyons had a real estate dispute about Johnson's plans to build a 4,500 square foot house. Johnson and his wife used the internet to harass Lyons. He placed a false ad on craigslist which falsely stated that he had a deceased son. The craiglist ads were designed to have people respond late at night so that it interfered with the Lyons's sleep. Johnson caused emails and letters to be sent falsely alleging that Lyons had molested his own son and an underage employee. Johnson subscribed Lyons to a number of organizations including organizations for nudists and gays.  Lyons sued Johnson for intentional infliction of emotional distress. After a jury trial, Lyons was awarded $4.8 million dollars in damages. The Johnsons were also prosecuted for criminal charges of harassment. This resulted in convictions for both Johnson and his wife and they were both sentenced to jail terms.

It is safe to assume that not every cyber harassment case will result in multi-million dollar verdicts and jail terms. However, this case shows that existing laws can address criminal behavior that uses new technology. If you are a victim of cyber harassment you should go to the police. You may also find it helpful to consult a Massachusetts attorney to advice you about your rights and how to protect yourself.  

Saturday, March 28, 2015

Death and Facebook. The Legacy Feature.

A friend of mine died and his wife posted his death and funeral arrangements on his Facebook page. In this era of social media, Facebook is a natural and expected forum to notify friends and relatives of such information. Unfortunately, use of his Facebook account was unauthorized by Facebook and constituted criminal behaviour under both Massachusetts and Federal law. At the time of his death, his wife had no other way to use his Facebook account to provide notice. Since that time, Facebook has changed its policies and now has a Legacy feature for memorization of Facebook pages after death.

Facebook's Terms of Service states: “You will not share your password let anyone else access your account, or do anything else that might jeopardize the security of your account.” In other words, the only authorized user of a Facebook page is the registered owner. There is no exception for family members after death. Authorization is important because both Massachusetts and Federal law make it a crime for any person who is not an authorized user to access a computer. Since using Facebook means that a user accesses Facebook's computer, any person who is not authorized by Facebook and uses another person's account is committing a crime. Massachusetts General Laws chapter 266, section120F punishes unauthorized computer access by up to thirty days in jail and a one thousand dollar fine. United States Code Title 18Section 1030 punishes unauthorized computer access by up to twenty years in prison and fines. Permission to use a Facebook account by the registered owner of the account is still a crime because Facebook doesn't allow such permission. A widow posting information about her husband's death is unauthorized and a criminal act.

Facebook has recognized people's desires to use Facebook accounts after death and has created a new feature called Legacy. During a person's life, they can designate a person as a “Legacy Contact.” This person will have limited rights to access a Facebook account after a person dies. The Legacy Contact can post a final message and Memorialize the account. Memorialization freezes the account, indicates that the owner died and may allow others to share memories on the account.

Every individual with a Facebook account should consider a legacy contact. This should become part of estate planning and become just as routine as writing a will or making pre-death funeral arrangements. Unauthorized computer access can have serious criminal consequences. A lawyer can help understand how to avoid violating the law and still enjoy social media.

Sunday, March 15, 2015

Civil remedies for spying with technology

In the past I have blogged about using technology to spy on a spouse the potential consequences. I have written about criminal penalties, and civil lawsuits. A recent case, Tinory v. DePierre, Mass.App.Div. No. 14-ADMS-4022 (2015), involved a GPS device planted on a car. This resulted in a claim for trespass. Trespass is normally thought of as the unpermitted, illegal entry onto a person's real property. However, Massachusetts law does allow trespass to personal property. In the Tinory case, the wife in a divorce action hired a private investigator to place a global positioning system device (GPS) on her husband's truck to monitor his whereabouts. This resulted in a lawsuit for trespass because there was an unpermitted, illegal touching of personal property (the truck.)

It is clear that society does not want people to spy on their spouses with technology. While people think that they will get an advantage in a divorce is they get information by spying, it rarely works that way.  There are a number of laws with criminal penalties for spying and people may sue in civil court for damages when such spying occurs.  In addition, Family Court judges don't want to encourage spying by allowing such evidence to be used.  

If you are the victim of electronic spying you should consult a lawyer who can advise you about the law and your options.  

Sunday, March 8, 2015

Can an out of state divorce decree be modified by a Massachusetts Court?

In a recent case, Cohen v. Cohen, the Massachusetts Supreme Judicial Court ruled that Massachusetts had no jurisdiction to modify a California divorce decree to order college expenses and child support. This case is easily misunderstood as the decision is limited to a particular type of case.

In the Cohen case, the parties were divorced in California and the Wife and child continued to live in California. The husband moved to Massachusetts. This meant that the Wife had to use the Massachusetts Courts to enforce the California divorce judgment. She could have hired a Massachusetts lawyer to collect her child support or she could have used the California child support agency to collect the money. She selected the California child support agency.

Every state has an agency which collects child support for residents of the state. In the Cohen case, the California agency initiated an interstate child support collection action under the Uniform Interstate Family Support Act (UIFSA.) Both Massachusetts and California (and probably all other states) have enacted UIFSA into their state law. While it was California in this case it could have been any state. Under UIFSA, California asked Massachusetts to file a case to enforce the California divorce decree and California law. An action was filed in Massachusetts by the Department of Revenue (DOR.) to enforce the judgment. While the Massachusetts Court had all of the powers under Massachusetts law to enforce the judgment, it had no power to modify the judgment. In the Cohen case, the divorce decree made no provisions for college education or medical bills of the child. The Massachusetts Court was unable to make any orders relating to payment of college education or medical bills.

This case doesn't mean that the Wife in the Cohen case could never ask a Massachusetts Court to modify the California Judgment. It only means that she couldn't modify under UIFSA. She could have hired a Massachusetts lawyer to enforce the California decree and modify the judgment. Had she proceeded in this manner, she would have enabled the Massachusetts Court to use all of its powers and authority including the power to modify the California judgment. If the Wife had filed an action in Massachusetts it would have been very expensive. She would have had to pay for a Massachusetts lawyer instead of having DOR represent her for free. She would have had to travel to Massachusetts for the trial and possibly for a pre-trial conference instead of staying in California. Of course, there is no guarantee that a Massachusetts court would apply Massachusetts law and modify the judgment. Instead, the court could have ruled that the Wife must file a modification in California or that Massachusetts would apply California law. As a general rule, using UIFSA for interstate child support enforcement is a better choice.

Interstate child support enforcement is a complicated area of law. If you have a case that crosses state lines you should consult an experienced family law attorney.

Monday, February 9, 2015

Pre-Nuptial Agreements are not automatically enforced.

Pre-Nuptial Agreements are not automatically enforced.

Pre-nuptial agreements in Massachusetts are enforced if they are fair at the time of the execution of the agreement and fair at the time of the enforcement of the agreement. Fairness at the time of the execution means that there was complete financial disclosure, had the ability to obtain advice of counsel, the agreement was free of duress, misrepresentation, and fraud and the terms are fair. Since the agreement must also be fair at the time of enforcement, the Courts take a “second look” at the agreement and view it in the context of the financial circumstances at that time. The agreement will be enforced unless the court finds that it is unconscionable. This means that the agreement will be enforced unless the agreement would leave the contesting spouse without sufficient property, maintenance, or appropriate employment to support herself.

In a recent case, Kelcourse v.Kelcourse, Mass.App.Ct. (Jan. 21, 2015), the court refused to enforce a pre-nuptial agreement. The agreement on its face appeared fair. The agreement gave the
Wife a house and alimony as part of the settlement. The problem was that the house needed over $300,000.00 in repairs and had negative equity. The Wife lacked funds to repair the house and, due to the negative equity, was unable to sell the house. The Court found that the condition and finances of the house rendered the agreement unconscionable and unenforceable.

The Kelcourse case means that in Massachusetts the second look is a real and substantial examination. The Court won't enforce the agreement if the spouse won't be able to support herself. In other words, disclosure and lack of duress is not enough to make an agreement enforceable. The second look must examine the circumstances to see if the facts and enforcement would shock the conscience.

If parties want a pre-nuptial agreement they should consult family law attorneys to advise them. This is not an area where parties should do-it-yourself. When the parties seek to enforce the agreement it may be too late to fix any problems.