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.