Monday, December 26, 2011

After divorce don't allow children to become master manipulators

As a general rule, parents, after divorce, don't communicate well with each other. If they could communicate well, they probably wouldn't have gotten divorced. This lack of communication creates a vacuum. Just as nature abhors a vacuum, so do children. Unless the parents act to avoid problems, children will fill the vacuum with manipulations.

A typical manipulation could occur around bed time. While the couple was together, the child's bed time was 8:30 P.M. One night, at Dad's house the child may ask “Why do I have to go to bed at 8:30 when Mom lets me stay up until 9?” Of course, Mom doesn't but Dad doesn't know that. Dad feels that he has to compete with Mom for the child's affections and says that the child can now go to bed at 9:00. The child then tries the same thing with Mom with similar success.

Of course, the answer is parents should communicate with each other and avoid competing for affections. A simple response to a child could be “I'll check with your mother and decide after we talk.” The child, knowing that the lie is about to exposed may simply fall back on “Never mind.” Of course, the best way to handle this is for parents to agree to check with each other on all such matters.

Another way of handling this is to explain to the child that there are two households with two sets of rules. So when the child explains that in Mom's house the child has a TV in the bedroom and can watch it until the child falls asleep, a good response is that there are two sets of rules. In Dad's house, there won't be a TV in the bedroom.


Sunday, December 11, 2011

Security Deposit Law—Landlords Beware!

     Recently, Judge Young of the U.S. District Court for the District of Massachusetts, wrote an opinion interpreting the Massachusetts Security Deposit law, G.L. c. 186, § 15B. In the case of Hermida v. Archstone, (Civil Action No. 10-12083-WGY) the court addressed an issue under the portion of the law that states that a landlord cannot require a tenant to pay any money at the inception of a tenancy except (i) rent for the first full month of occupancy; (ii) rent for the last full month of occupancy calculated at the same rate as the first month; (iii) a security deposit equal to the first month's rent; and (iv) the purchase and installation cost for a key and lock. The landlord in this case collected an “amenity use fee.” An amenity use fee was for use of a pool, gym, and outdoor grill. The landlord claimed the fee was optional and the tenant claimed that they were never told that the fee was not required. The court found that the landlord violated the statute by imposing this fee.
     The court found that the amenity use fee did not fit within any of the categories of fees allowed by this statute. As such, the landlord violated the statute. Although the court opinion did not address damages, the statute does. Violation of the statute mandates treble damages and attorney fees. The award of attorney fees can far exceed the treble damages imposed. A wise landlord will make certain that there is no violation of the statute.
     The landlord in this case could have collected this fee and not violate the statute. The landlord could have advertised that as a tenant, the tenant could join the “club” which allowed use of the amenities. The landlord should have made it clear that the club was optional. When the tenant moved into the property, the landlord could have given him an application to join the club and an explanation of the fee. The tenant would then have a choice and, if he choice to join, would have paid the fee after he moved into the property. As long as the fee is collected after the tenant moves in and is optional, it shouldn't be a violation.
      I have long argued that many landlords violate this statute in the way they rent apartments. In Boston and other areas, it is very difficult to locate a rental unit unless a person uses a realtor. Realtors typically collect their fee when the tenant rents a unit. Their fee is protected by a listing agreement with the landlord which requires the tenant to pay this fee as a condition of renting the unit. In my opinion, this violates the security deposit fee just as the amenities fee paid by Hermida violated the law. It is not a violation for a tenant to pay a fee to a realtor for the right to look at the realtor's listings. It is only a violation when the landlord requires the tenant to pay the fee. If the landlord has to pay the fee, the landord should amortize the cost of the fee over a twelve month period and raise the rent.

Sunday, November 6, 2011

Can a landlord charge for water and sewer?

In Massachusetts, in order for the landlord to charge for water and sewer, there are a number of specific steps that have to be taken. There has to be water conserving fixtures installed and the water has to be separately metered. A plumber has to certify as to the installation of water conserving fixtures. A document has to filed  with and approved by the board of heath concerning the water conservation fixtures. These steps have to be taken before the issue of changing the lease can be reached. If a landlord has not complied with these steps a tenant should be able to call the Board of Health who should notify the landlord that he can't charge for water and sewer charges.

This can be a complicated area of law and a landlord should consult and experienced real estate attorney to comply with the law.

Saturday, October 29, 2011

Halloween Laws

Every now and then, it is fun to look at ordinary events in our lives and examine how law interacts with the event.   Halloween is one of those events.

Massachusetts was home to the Salem witchcraft trials. These trials occurred in 1692 in which 19 people were convicted of the crime of witchcraft and were executed by the Colony of Massachusetts. A 20th person was killed because he would not plead guilty or not guilty to the
crime of witchcraft. These infamous trials have been taken to heart by the Town of Salem and Salem now considers itself the center of universe for Halloween celebrations.

While witchcraft was a crime in 1692 it is no longer a crime in Massachusetts. In 1693 the jails were filled with accused witches waiting for trials. All of the people who had been convicted of witchcraft were convicted on what was called spectral or spectoral evidence. This allowed evidence of spectres or visions to be admitted. People were convicted because someone had an unexplained medical condition. The legislature did not repeal witchcraft as a crime. Instead, the legislature banned the admission of spectral evidence. As a result of this change in procedures not a single person was convicted of witchcraft again. Massachusetts still prohibits the admission of spectral evidence in
court.

Today, Massachusetts doesn't have any specific laws for Halloween. Witchcraft is not mentioned in the General Laws of Massachusetts. However, there are a number of laws that arguably relate to Halloween concepts.

Massachusetts has a Dead man's act. Mass.Gen.L. c. 233, § 65. This isn't as scary as it may sound. This law relates to use of statements of a dead person in a court proceeding. It is part of a rule of evidence known as the hearsay rule.

There are a number of dead body laws. If a person removes or disinters a dead body they can be punished by up to three years in the state prison. Mass.Gen.L. c. 272, § 71. It is illegal to sell a dead body or body parts and is punishable by up to two a half years in jail. Mass.Gen.L. c. 272, § 72. Sheriffs and constables are prohibited from seizing a dead body to collect a debt. If they do, they can be punished by six months in jail. Mass.Gen.L. c. 272, § 70. (How does a sheriff collect a debt by seizing a dead body?)

A number of states have court decisions relating to Halloween icons. A few are described below:

In California witches need to be licensed. In re Zsuzsanna Bartha 63 Cal.App.3d 584, 134 Cal.Rptr 39, 91 A.L.R.3rd 759 (l976). Meanwhile Massachusetts, home of Salem witchcraft, does not license witches.

In 1991, a New York Court found facts to determine that a house was haunted. Stambovsky v. Ackley, 169 A.D.2d 254 (NY App. Div. 1991). The court reached this conclusion based in part on evidence that was spectral in nature. However, the court based its decision on traditional contract concepts.

In the United States, you can't sue the Devil. Someone actually tried that. In U. S. ex rel. Mayo v. Satan and his Staff, 54 F.R.D. 282 (W.D. Pa. 1971) the court dismissed a lawsuit against Satan because as the principality of his own kingdom, he is beyond the jurisdiction of the courts.

It appears that necrophilia is not a crime in Massachusetts. In the case of  Commonwealth v. Costa, 360 Mass. 177 (1971), there were sufficient facts to prosecute for necrophilia but the Commonwealth didn't prosecute for that. While necrophilia may not be a crime, remember, you can't move the body. It appears that necrophilia doesn't constitute adultry either.  Good thing we have no fault divorce for anybody who discovers that their spouse engages in necrophilia.

While Massachusetts doesn't have laws that specifically deal with Halloween, there are a number of laws that are important on Halloween night.

It wouldn't be Halloween without trick or treating. If tricks involve damage to property, that constitutes the crime of vandalism. Mass.Gen.L. c. 266, §§ 94-107. If the trick involves a john then the “trick” is prostitution and is illegal. Mass.Gen.L. c. 272, §§ 53, 53A.

For many people, Halloween means parties. Parties, at any time of year, have the potential for legal problems. It is a crime to serve alcohol to minors. Mass.Gen.L. c. 138, § 34. If a person drinks too much at a party and then drives and has an accident, the host of the party can be sued for the resulting injuries. This is known as social host liability and exists in Massachusetts. Most towns have ordinances that prohibit parties from making too much noise late at night. Usually police give a warning when they first arrive at the home where a noisy party exits. However, they may have the power to arrest for the offense of making noise late at night.

Halloween celebrating can result in some people drinking and driving. Massachusetts prohibits operating a motor vehicle under the influence of alcohol. Mass.Gen.L. c. 90, § 24.

Halloween should be a time for fun.  Have a happy Halloween and make sure you don't move any dead bodies, do any illegal tricks, or party too hard.  If you do any of these things, you may have to hire a lawyer which could be scarier than any costumed person who shows up at your door.





Sunday, October 16, 2011

Bribe your ex-spouse.

After divorce, parties frequently feel the need to change the terms of the separation agreement or divorce judgment. The easiest way to change the divorce terms is to enter into an agreement with your ex-spouse. Unfortunately, the ex may not agree even though you are asking for changes that are logical and reasonable. It appears that your only option is to hire a lawyer and file a modification action. This is a long and expensive process. There is another option:  Bribe your ex-spouse.

In many cases, the other spouse may cooperate if they receive money or other consideration for the agreement. An example of this is moving the child out of state. If the ex-spouse refuses to give permission to take the child, consider offering other considerations. I suggest that the child support payments be lowered to compensate for the added cost of traveling out of state to visit. In addition, the visitation schedule should be changed to give the other parent longer visits. Perhaps giving the other parent Christmas vacation every year would obtain their cooperation. In addition, the parties could agree on regular “Skype” visits over the internet. Offers of this nature may result in cooperation to move out of state and improve the relationship between the two parents.

After you and your ex-spouse have agreed, you can file a simplified form to have the court approve your agreement.

Tuesday, October 11, 2011

The 4 “A”s that cause divorce.

There can be many reasons for couples to get divorced. However, four behaviors stand out as causing divorce: Abuse, Addiction, Adultery, and Abstention.

Physical abuse constitutes the crime of assault and battery. This behavior can be highly destructive. While many people stay in an abusive relationship for a period of time, most people who are victims of abuse separate and get divorced.

Addiction to drugs or alcohol also can be extremely destructive. Addiction can lead to abuse, loss of job, wasting of money, and other harmful conduct.  Frequently, addicts resist attempts to help them fight the addiction.

The concept of marriage incorporates a pledge of exclusive sexual access for the spouses. Adultery represents a violation of this pledge and many people view this as so important that any act of adultery will cause a divorce. Since few people commit adultery in sight of their spouse, the appearance of adultery can be as harmful as adultery itself. If people want to protect their marriage, they should avoid behavior that causes their spouse to think that adultery is occurring

Abstention is the absence of sexual relations. For most couples, sex is important to maintain intimacy and harmony. If they stop having regular sexual relations, it can be as destructive to the relationship as any other behavior. Frequently, abstention will result in one party seeking sex outside the marriage. Couples should have regular sex to make the marriage last.








Sunday, October 2, 2011

The Alimony Reform Act of 2011

The alimony reform act of 2011 was signed into law last week. This law reforms the law of alimony with the stated purpose of eliminating life long alimony. The law changes alimony in many other ways such as creating new types of alimony, allowing new factors to be considered in creating alimony, and implementing some formulas for calculating alimony. The law becomes effective on March 1, 2012 but will start effecting divorces immediately. Most lawyers who represent potential payors of alimony won't discuss alimony in agreements unless it is based on the new law. Furthermore, the new law allows some alimony agreements to be modified after the effective date so failing to consider the new law could be a disservice to the client.

Sunday, September 25, 2011

Who should have a premarital agreement?

The simple answer is anybody who comes to the marriage with something to protect when the marriage terminates should have a premarital agreement when they get married. The general categories of people who can benefit are people with children from a prior relationship, significant family assets, or people who own a business which comprises a major source of income.
If there are children from a prior relationship, they may not inherit when their parent dies without a premarital agreement. The laws of inheritance give preference to a surviving spouse. Even if a will exists, the law still gives preference to a spouse. The best way to make sure that children can inherit is to write a prenuptial agreement. When one spouse owns a business or a portion of the business in which they receive significant income, it may be desirable to make certain that the new spouse can't receive a portion of the business in a divorce. It can be devastating to the business to have a person own a business when they are not qualified to run the business. It can also be very difficult for one spouse to suddenly work for an ex-spouse.

Another group of people who should have a premarital agreement are people who are religious and whose religion offers a religious termination of a marriage.  Catholics, Muslims, and Jews can all obtain a religious decision that a marriage is terminated or never existed.  Some people will want both a secular divorce and a religious divorce or annulment.  Anyone in this group can benefit from a premarital agreement because an agreement can make a religious termination occur without a fight and at minimal cost.

Premarital agreements can successfully protect against these problems and others.  Consulting an experienced family law attorney before getting married can eliminate problems and fighting when the marriage terminates.

Sunday, September 18, 2011

What is a pre-nuptial agreement?

A pre-nuptial agreement is an agreement between a couple who intend to get married which determines financial obligations upon termination of the marriage. All marriages terminate either by divorce or by death. A pre-nuptial agreement should determine rights and obligations for both methods of termination. A pre-nuptial agreement must be fair at the time of creation and fair at the time of enforcement. Fairness at the time of creation means that both parties must make a full and fair disclosure of their income, assets, expenses, and liabilities. Fairness at the time of enforcement requires a fair distribution of income and assets at the time of termination. This doesn't mean an equal distribution but one party can't be left destitute. As parties can't contract away children's rights, a pre-nuptial agreement can't determine child custody or support issues.

An experienced family law attorney can help avoid problems upon termination of the marriage.

Wednesday, August 17, 2011

Tenants' rights after foreclosure

In the recent case of Bank of New York v. Bailey, 460 Mass. 327, (SJC-10801, August 4, 2011) the court ruled that a tenant has the right to challenge the title of a owner who obtained their title to the property from a foreclosure.

While this is considered by some as a landmark ruling, it shouldn't be a surprise to lawyers who are familiar with landlord tenant law. In order to evict a tenant, the plaintiff must claim that they have a superior title to the tenant. In order to have a superior title, the plaintiff must have a valid ownership interest. In the Bailey case, the plaintiff claimed that a foreclosure deed, on its face, established their superior title and that the tenant couldn't contest this. If a deed by itself is sufficient to establish title, what stops a person from forging a deed and then trying to extort money from a tenant by starting an eviction case? I believe that it is unconstitutional to evict a person without allowing them the opportunity to challenge a forged deed. Yet the Bank of New York argued that their foreclosure deed was above challenge. The court decision does not go into great detail on BNY's arguments. However, it it possible that BNY argued that tenants generally can't contest the landlord's claim of title. This is correct but with different facts. If a person, claiming to own the property, gives a tenant keys and allows them to enter the property, the tenant can't claim that person is not the owner of the property. This doctrine of title by estoppel is based on the concept that a tenant who takes advantage of a claim of title by taking possession can't then challenge the very same claim of title. In the Bailey case, the tenant did not take possession of the property from BNY. They took title from someone else and BNY claimed that they took the title away by a foreclosure. There is no estoppel in this situation. The argument by BNY ignores another concept in eviction law. A summary process action (eviction) is an action to take away a property interest. This is called a forfeiture action. Forfeiture actions are abhorred by the law and require strict compliance with all formalities. This strict compliance with all formalities is also present in foreclosure actions for the same reason. The only way a court can discover if a foreclosure strictly complied with all formalities is by holding a trial. 

The decision of the Supreme Judicial Court complied with existing law.

Tuesday, June 28, 2011

Contempts and the right to counsel

In the case of Turner v. Rogers, U.S Sup.Ct. No 10-10 June 30, 2011, the Supreme Court addressed the question of is a court appointed attorney required in civil contempt proceedings for the collection of child support. The simple answer is sometimes yes and sometimes no. Probably, most of the time, court appointed counsel will not be required. It is my opinion that under present Massachusetts practice, court appointed counsel must be appointed. If Massachusetts makes some minor changes, counsel won't be required in the majority of cases.

The decision of the court makes it clear that incarceration as a result of a contempt finding is just as harmful as incarceration in a criminal case. Before jail can be imposed for non-payment of child support, the court must either appoint an attorney to represent the defendant or provide “substitute procedural safeguards.” Substitute procedural safeguards include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information from him; (3) an opportunity at the hearing for him to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay. Massachusetts practice includes the last three of these safeguards. What is lacking is the notice to the defendant that his ability to pay is a critical issue.

Notice of a complaint for contempt is provided by service of a summons and a complaint. The current form of a summons does not have any language that provides notice that ability to pay is a critical issue. As long as Massachusetts lacks this essential notice, it appears that Massachusetts will have to appoint attorneys to represent defendants in contempt cases. It should be a simple and inexpensive remedy for the state to revise the form of summons and include the language that is now constitutionally required. Until this is done, the language can be added to complaints or court appointed attorneys must be provided.



While the Supreme Court decision does not go further, I think that the decision requires more than notice and filling out a financial statement. It appears to require that the Defendant have the ability to understand the issue of ability to pay and to present testimony on this issue to the court. If the defendant lacks this ability, then the court needs to appoint counsel.

Thursday, June 23, 2011

Assents in Probate

Recently, I was asked to explain an assent form for the administration of an estate of a deceased person.  In the probate process, there are a number of actions of the Executor that require approval by the Judge. Our probate system generally works on the assumption that the parties to the estate have the most knowledge. If the parties (heirs) want to object to the actions of the executor, then the court will look at the actions with more care. Otherwise, the court can assume that everything is proper. So when a judge's approval is requested, the heirs and other parties are given notice of the issue and given an opportunity to approve or object. If all parties approve, it can expedite the process and decrease the cost. If a person objects, it may create an issue for the court to investigate and hold hearings to resolve. The third choice is to do nothing and let the court decide what action to take without guidance from the parties.

If a party is requested to sign an assent, there are documents that will be submitted to the court which explain the proposed action. The first opportunity to assent is to approve the will and appoint the executor. The subsequent assents could be all sorts of things. Nobody should sign an assent unless they have copies of the documents relating to the issue and understand the contents. The assent will identify the document that is submitted to the judge. An assent says to the court that you approve the proposed action of the executor. It also says to the court that you don't need further notice of the proposed action.

The following is an example of how this works. When the probate is filed, the petitioner files a copy of the will with a petition to probate, a death certificate, and a bond. If you sign the assent, you probably won't get further notice of the petition to probate. If you don't sign the assent, you will be "served" (probably by mail but possibly by a sheriff) with a court document called an order of notice that tells you the petition and will were filed and that you are an interested party and have the right to object to the petition. It will also tell you the date by which you must file your objection. If you don't file the objection by that date, you will not have the right to contest the will or appointment.

Saturday, March 26, 2011

Alimony Reform Act Part 2 - Types of Alimony

In Massachusetts, a judge can order alimony in a divorce or not. An award of alimony will last until there is a change of circumstances. The only way alimony can terminate based on a period of time is if the parties agree. Without such an agreement, alimony lasts until a party dies, the recipient remarries, or a change of circumstances exists.
The proposed Alimony Reform Act will allow different types of alimony. The bill will allow General Term Alimony, Rehabilitative Alimony, Reimbursement Alimony, and Transitional Alimony.
General Term Alimony is the equivalent of alimony under current law. However, under the new law, the court will limit alimony to a period of time unless the court makes findings that alimony should exceed the time limits. The time limits start at 50% of the length of the marriage for marriages under five years and can be indefinite for marriages over 20 years.
Rehabilitative Alimony provides support while a spouse acquires skills to become self-supporting. This will allow support while a spouse gets an education or job training.
Reimbursement Alimony is not based on need but provides compensation for support or other contribution to the family. It is not unusual for one spouse to sacrifice their education and work while the other spouse gets an education.
Transitional Alimony provides support while a spouse "transitions" to a new location or an adjusted lifestyle. Usually, this would be a one time payment. Under current law, a court can order payments of this nature but it would be part of a property division order and not alimony. Allowing payments of this nature as alimony will give Judges more flexibility in making judgments.
The proposed law, with different types of alimony, will provide more flexibility and more fairness in divorce decrees.

Sunday, March 20, 2011

Alimony Reform Act of 2011 Part 1

In 2011 the Massachusetts legislature passed a law that changed  alimony  in  Massachusetts. The law is called the Alimony Reform Act of 2011.  I will discuss the proposed changes in this blog. I will post a number of articles as there are too many changes to discuss in one posting. The first topic will be the factors a court will consider when deciding an alimony issue.
Alimony is sometimes awarded when couples get divorced in Massachusetts.  It is controlled by G.L. c. 208, § 34.  The new bill, if passed, will be a complete overhaul of the law of alimony in the state.
I have created a chart which compares the alimony factors under present law and the proposed law which is included at the end of this article. The new law includes all of the factors that a judge must consider and may consider under current law and adds additional factors. However, the biggest change is a catch all concept that allows the judge to consider any additional factors as the court may deem relevant and material. There have been many decisions where judges have lamented the current limitations that restrict the factors to the those stated in G.L. c. 208, § 34. Under the new law, the Judges won’t have this limitation. This should result in fairer and more equitable results.
While the current factors are preserved, there is additional language that places an emphasis on certain behavior. Abuse that causes physical or mental harm that interferes with a party’s ability to earn income is specifically mentioned in the new law. It appears that health issues that effect one’s ability to earn money are emphasized in the new law as additional language is added to the health factor.
Under current law, alimony may be ordered by a Judge or not ordered. A Judge has no ability to limit an alimony award to a period of time. The proposed law will allow a Judge to impose time limitations. Thus a new factor will be considered: the appropriate period of time for alimony. This new concept in Massachusetts should create more just and fair alimony awards in divorces.

 

Current Law
G.L. c. 208, § 34.
Proposed Law
Alimony Reform Act of 2011
length of the marriage
length of the marriage
conduct of the parties during the marriage
conduct of the parties during the marriage including a party’s inability to provide for his or her own support by reason of physical or
mental abuse by the payor
age
age
health
health including advanced age; chronic illness; or unusual health circumstances of either party
station
station and marital lifestyle
 
ability of each party to maintain the marital
lifestyle
occupation
occupation and if a party is unemployed or underemployed
amount and sources of income and employability
both parties’ income, employment and employability, including employability through reasonable diligence and additional training
vocational skills
vocational skills
estate
estate
liabilities
liabilities
needs of the each of the parties
needs of the each of the parties
opportunity of each for future acquisition of capital assets and income
opportunity of each for future acquisition of capital assets and income
 
amount and duration of alimony
 
ability to pay alimony
 
economic or noneconomic contribution to the financial resources of the payor spouse and to the marriage
 
Significant premarital cohabitation that included economic partnership and/or
marital separation of significant duration
 
lost economic opportunity as a result of the marriage and a party’s inability to provide for his or her own support by reason of a party’s
deficiency’s of property, maintenance or employment opportunity

such other factors as the court may deem relevant and material
 
Tax considerations applicable to the parties
 
Whether the payor spouse is providing health insurance and the cost of heath insurance for the recipient spouse
 
Whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance
 
Sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties divorce

 
.

Tuesday, February 8, 2011

Tenants win interpretation of security deposit law

The Massachusetts security deposit law imposes severe obligations on landlords. Tenants have argued a strict interpretation of the law and landlords have argued for good faith compliance. In the case of Lopes v. Williams, 2010 Mass. App. Div. 227 (2010) the court sided with tenants in this argument. In this case, the landlord failed to place the security deposit in an escrow account. This failure required the landlord to return the security deposit to the tenant within thirty days of receiving the security deposit. An argument advanced in the past was that the tenant had to request the return of the security deposit. This case makes it clear. The landlord either holds the money properly in an escrow account or must return the security deposit to the tenant in thirty days even if the tenant does not request a return of the money. Failure to do so will cause the landlord to pay three months rent and attorney fees to the tenant. This case also dismissed the good faith argument. It is clear that landlord’s intentions or understanding of the law is not relevant to the landlord’s obligations and liabilities. The landlord must strictly follow the requirements of the security deposit law.

I think that this law is so difficult for landlords that unless they are professional landlords, they shouldn’t take a security deposit. They shouldn’t run the risk of paying three months rent and attorney fees.

Wednesday, January 26, 2011

Is the Ibanez decision a landmark case?


The Massachusetts Supreme Judicial Court recently issued a decision in the case of U.S. BANK NATIONAL ASSO. v. IBANEZ, (Mass. 172011) (Jan 7, 2011) in which the court held that two foreclosures in Massachusetts were void. Some commentators have treated this decision as a landmark decision in real estate that will shake up the mortgage industry. I think that this case is a reaffirmation of traditional concepts in real estate law. It may help some homeowners understand their rights, Some people who have lost their homes to foreclosure may even get their homes back. It should cause mortgage companies to be more careful in their attention to the paperwork and detail of mortgages and foreclosure.
Massachusetts law of mortgages and foreclosure was created in a day before computers when banks treated mortgages one at a time. Usually, banks loaned money and held the mortgage until it was paid off. Today, banks loan money for mortgages and sell them to other investors before the ink dries on the promissory note. Mortgages are bundled together and sold to investors in large groupings of mortgages. Paperwork has changed from selling a single transaction to selling thousands of loans at a time by transferring them to a trust or other entity. This process, called securitization, may have to change in light of the Ibanez decision.
In Ibanez, two properties were foreclosed upon and then the banks that bought the properties brought actions in land court to declare that they held good title to the properties. To the suprise of the banks, the court held that they did not have good title. The foreclosures were void.
Massachusetts has always held that any legal action that causes a forfeiture must strictly comply with the procedures required. Failure to comply with the formalities will result in failure to cause the forfeiture. This applies to foreclosures, evictions, or any other action that the law considers a forfeiture. The Ibanez decision was based on this concept that the mortgage companies failed to strictly comply with the formalities of foreclosures.
In Ibanez, the mortgages were sold many times before the foreclosure. The documentation of the transfers or assignments was not properly filled out until after the foreclosure process was started. Since a foreclosure can only be conducted by the party who holds the mortgage, the failure to properly assign the mortgage makes any subsequent foreclosure void. This doesn’t mean that assignments must be recorded at the registry to be valid. It does mean that the banking industry must take care to check the paperwork before foreclosing.
What does this case mean for future foreclosures? Actually, it makes very little difference. Banks and bank attorneys will have to do more work to prepare for foreclosures. If the paperwork isn’t correct, they need to correct it before a foreclosure is conducted. This may slow down the process a little. It should not be a significant difference. Homeowners may consult hire attorneys about stopping or reversing foreclosures. Since most people face foreclosure because they can’t make the payments, this won’t change the result. This case doesn’t put money in the pockets of homeowners. It merely forces banks to pay more attention to detail. A homeowner can hire a lawyer to fight a foreclosure but if the homeowner can’t find the money to bring the mortgage current, foreclosure will still occur. Eventually, the bank will own the property.
The Ibanez case is important but it is not earth shattering. Massachusetts law didn’t change. Instead, mortgage companies will change their practices a little.

Saturday, January 15, 2011

What does it take for a party to get 90% of the assets in a divorce?

Property division in a divorce is controlled by G.L. c. 208, §34 which lists the factors for a judge to consider when making a decision about property division. Usually, the judge makes a division somewhere between a 50-50 split and a 60-40 split. Sometimes, the judge may make a more lopsided division of 65-35 or even 70-30. It is almost unheard of for a judge to divide the assets by an 80-20 split. In the recent case of Wolcott v. Wolcott, 78 Mass.App.Ct. 539 (2011), the court did the unthinkable and awarded the husband 90% of the assets. This lopsided division was based on highly unusual circumstances.
In this case, the wife tried to hire someone to kill the husband and may even have tried to kill him herself. She was convicted of attempting to hire a hitman and served three months in jail. The appeals court found that "conviction of a spouse of the crime of soliciting the murder of the other spouse" was "exceptional" conduct that shocked the conscience of the court and would "have an impact on the ‘conduct’ factor under [§ 34] irrespective of ‘economic impact.’" However, the attempt to murder the spouse alone, would not have justified such a lopsided result. In addition to the wrongful conduct, the court looked at the economic effect from the wrongful conduct. The court found that the wife’s conduct forced the husband to "take on total responsibility for the children’s care"; "makes [the husband] totally responsible for maintaining the parties’ home"; and will "always" adversely affect the husband as it "diminishes his ability to be totally focused on life and work issues." The wrongful conduct and the economic consequences justified an award to the husband of 90% of the marital assets.
The lesson learned from this case is that it is cheaper to divorce a spouse than to try to kill the spouse. As always, compliance with the law is better than violation of the law.

Wednesday, January 12, 2011

How does the father protect his parental rights when he is not married to the mother?

Men are suppose to have equal rights with women in Massachusetts. However, a recent case explains that when it comes to children from parents who are not married to each other, men don’t have equal rights unless they take certain steps to protect those rights. Ideally, men and women have equal rights under the law. However, science does not afford the same level of equality. When a child is born, there is no question of the identity of the mother of the child. Therefore, the law recognizes the mother and her parental rights immediately upon birth. Biology does not make identification of the father so easy. A man may be present at birth, have his name on his birth certificate, and support the child. However, these actions are not sufficient to instill the man with parental rights. An alleged father of a nonmarital child may become a legal parent in one of two ways only: through an adjudication by a judge, or by filing a voluntary acknowledgment of paternity executed by both parents. The man’s name on the birth certificate is not sufficient.
The recent case of SMITH v. McDONALD, SJC-10670 (Mass. 12-14-2010) explained that prior to a legal determination of paternity, the child's mother is vested with sole physical and legal custody, and that custody arrangement continues even after paternity is established until modified by a court. So if no court action has been filed, the mother has sole custody of the child even if the parties have executed a voluntary acknowledgement of paternity.
A man who wants to protect his parental rights must have a judge determine that he is the father and grant him joint legal or joint legal and physical custody. Even if the parties are living together, when a child is born of a non marital relationship, the parties should execute a voluntary acknowledgment of paternity and go to Probate Court and have the court grant joint custody to the father and mother. This will protect the child’s rights as well as the father’s rights.

Monday, January 3, 2011

Massachusetts has a new homestead law.

Massachusetts has changed the homestead law effective in March 2011. These changes will benefit every person in Massachusetts that owns a home. A homestead is a statutory exemption protecting a principal residence against the rights of creditors. This means that a homeowner who owes money for a debt has some protection against losing his home to the creditor. The new homestead law provides an automatic homestead in the amount of $125,000.00 and three other types of optional homesteads that provide protection of $500,000.00. I recommend that every homeowner should take advantage of the homestead law and file a declaration of homestead to take advantage of the full $500,000.00 protection.
A homestead does not prevent a creditor from attaching a home. As an example of the way this law works, take the example of Homeowner A who causes an auto accident and gets sued for $1,000.000.00. The damages sought exceed the amount of A’s auto insurance so the victim of the accident obtains an attachment of A’s home. If there was no homestead, the victim could force a sale of A’s home to get the equity in the house. However, with the homestead, the victim could still force a sale of the house but the first $500,000.00 in equity ($125,000.00 if it’s the automatic homestead only) goes to A and not the victim. This means that the victim won’t force a sale of the house unless A has more than $500,000.00 in equity.
There are many improvements in the new law that will benefit homeowners. The new law extends the homestead protection to spouses and other family members. The law also protects against prior debts that are not yet secured by the house. Of course, it doesn’t protect against voluntary liens on the real estate such as mortgages.
I recommend that every person in Massachusetts who lives in a house that they own declare a homestead.