How Do You Know When to Contact a Personal Injury Lawyer?"

General Injury Lawyer

Determining if you need a personal injury lawyer for your claim is not always easy. Especially if you have been in car accidents before, you may think that all you need to do is call the insurance company. This may or may not work in your favor but most people think that this is simply the way it goes. However, personal injury attorneys want you to know that you should not expect things to go poorly when you get in contact with someone else’s insurance company. In fact, it can seem like people are out to get you and are not on your side and the truth is you may be right. While we do not encourage our clients to be paranoid, we do want to give you a healthy dose of reality. Even if the other party’s insurance agent seems like the nicest person in the world, their job is not to make sure you get the compensation you deserve after an accident. It is to make sure their company pays as little as possible.

Personal Injury Claims and Getting a Lawyer
With this in mind, you may be wondering if you need a personal injury attorney for all claims you make against someone else. We have written down a helpful list of times when it would be especially prudent to have a personal injury attorney from our firm on your side.

1. Your injuries are severe. In some cases, you may find that you have minor bruising and do not wish to even make a claim. We understand not wanting to make a big deal out of nothing. However, when your injuries are more obvious and severe, you may have a bigger personal injury claim on your hands. Typically, the more severe your injuries are, the bigger the compensation and the longer it will take you to recover. You don’t want to rely on yourself to fight a personal injury claim when you are recovering from your injuries.
2. You have a disability. When an accident causes you to have a permanent disability or a long-term disability, the lawyers at Cohen & Cohen can explain how it can be particularly difficult to try to determine what type of compensation you deserve and how much. A personal injury attorney who has knowledge of personal injuries and disabilities is the right person for the job.

If you would like to speak with a personal injury attorney about your claim, please contact a nearby office now.

Emojis can have legal consequences.🥺

👨‍⚖️ An emoji is "any of various small images, symbols, or icons used in text fields in electronic communication (as in text messages, e-mail, and social media) to express the emotional attitude of the writer, convey information succinctly, communicate a message playfully without using words, etc." Since 2010 emojis have become common in popular usage an some emojis have acquired standard definitions.  Emojis have gained acceptance in personal communications as well as business communications.

A number of courts have examined specific communications in which emojis were used.  These cases addressed the issue of what, if any, legal effect is to be given to the communication which used emojis.  In a Massachusetts case the District Attorney argued that an emoji with eyes crossed sent by the defendant to the victim was evidence of  premeditated  murder.  The court allowed the jury to consider the emoji as evidence.  A Colorado Court discussed the difficulty of interpreting emojis as it is a picture used to convey information.  The Court noted that interpretation is more difficult as the actual image created by the emoji can differ depending on the software used by each person.  An Israeli Court concluded that a contract had been created after considering a communication that used emojis.

Courts have interpreted emojis in criminal cases, contract cases, family law cases, sexual harassment cases, copyright cases, and a variety of other cases.  Court will continue to interpret emojis as long as people use them for communication.

In all of these cases, the Courts treated the emojis as a form of communication.  Just as with any other communication, Courts have to interpret the communication.  Emojis can be difficult to interpret and Courts will continue to struggle with the meanings of individual communications.  When communicating on a subject that is important I advise that people should use clear communications and avoid the use of emojis. If you want to know the legal consequences of an emoji communication you should consult an attorney.

After divorce update your estate plan and survivor provisions for assets

A divorce judgment will allocate assets between the spouses. This property division will address all assets owned by either party or both party without regard to the title prior to the divorce.  In many instances the final judgment will allow some or all assets to be allocated to the party who owned the asset prior to divorce.  Many of these assets will have contract terms that contain payable on death clauses.  Typically these payable on death clauses are paid to the surviving spouse. 

After a divorce, each spouse should examine all assets allocated to them and review the payable on death clauses.  In particular, life insurance policies, retirement accounts, pensions, investment accounts, and bank accounts should all be examined.  If the divorce decree requires death designations then there is a specific duty to conform to the requirements of the judgment.  If the decree is silent on death designations then each spouse is free to change the death designations to any person they want.  However, if a person still wants to make their ex-spouse the death beneficiary then extra steps must be taken.

Massachusetts law treats any death designation to an ex-spouse as revoked upon divorce.  This means that if a person wants their ex-spouse to receive death benefits they must take some action, after divorce judgment issues, to reinstate the death benefit.  I recommend that if a person wants their ex-spouse to continue to have death benefits that they state so in a will.  In addition, they should notify the trustee of the asset (life insurance company, brokerage firm, bank, etc.)  that they are ratifying the death benefit designation.  If a person does not write a will after a divorce then they should write their intention in a document that can be signed before a notary public.

If these steps are not taken, then the assets are not likely to be distributed as desired after death.  In addition, there is an excellent chance that litigation will be filed to determine who gets the asset after death.

It is strongly recommended that everybody who gets divorced should consult a lawyer and execute a will after the divorce. 

Massachusetts allows remote notarization of documents during the Corvid-19 emergency

Massachusetts is still suffering from Corvid-19 (Coronavirus) and all citizens are suppose to follow social distancing rules.  Businesses are permitted to open but must maintain social distancing and limit the number of people in an office.  People still have the need to execute documents.  Some of these documents need to be signed before a notary public.  Massachusetts government has recognized the need for documents to be signed before a notary public during this emergency by passing a law to allow remote notary witnessing of documents.  This law went into effect immediately upon the Governor signing the law due to the emergency nature.  The law expires three days after the Governor’s declaration of emergency terminates.

This bill has a number of requirements for remote notarization.  The following is a summary of the requirements of the new law:

● Notary must witness signing of document by video and acknowledgment by principal
● Notary and Principal are physically within Massachusetts (Principal swears or affirms this to Notary)
● Principal discloses all other people in the room with Principal
● Principal provides Notary with proof of identity
○ Government issued
○ Photo ID
○ ID displayed on video and then image of front and back emailed or faxed to Notary or sent with document
● Original document sent to Notary by delivery or courier service
● Notary record retention 10 years
● If the document being notarized relates to the title to land the principal and notary must have a second video conference in which the principal verifies that the document received by the notary is the correct document.  A second form of identification is also required.
● When notary affixes notary seal the recital must indicate that the document was remotely acknowledged
● Notary executes an affidavit in which the notary states compliance with all of the requirements under the statute and retains the affidavit for 10 years.
● Certain documents may only be notarized by a notary public who is also a lawyer or a paralegal working under the supervision of a lawyer.

Attorney Alan Pransky is also a notary and can assist people who have a need to have documents signed before a notary public.

Massachusetts emergency declarations and court ordered parenting time (visitation).

In an effort to fight the spread of Covid-19 (coronavirus) Governor Baker has issued emergency declarations and Health care advisories to enforce social distancing. He has declared a public health emergency. He has closed all non-essential businesses. He is trying to force Massachusetts residents to stay six feet away from other people. The Courts have issued their own set of rules for functioning during this emergency in which they are closed for all purposes except emergencies. What happens to Court ordered parenting time during this emergency?  

Chief Justice of the Probate Courts has issued an open letter addressing parenting time during the Covid-19 emergency.  This letter states that parenting orders must be followed unless the parent or child are quarantining.  The letter has several links that are helpful and discuss parenting in more specifics.

If there is a court order that specifically calls for parenting time during the Covid-19 emergency then those orders must be followed. Very few court orders will meet these criteria.

In all other cases, the parents should cooperate to allow parenting time in compliance with both the court orders and the emergency orders to the extent possible.  The ideal visit would keep the parent and child six feet away from each other.  A visiting parent can meet the child at the child's home and take the child for a walk, biking, or hiking. Perhaps the parent and child can have picnic. During these activities they can stay six feet apart.

However, if a visiting parent insists, then that parent can transport a child in a car or take the child to the visiting parent's home. The parent should not be able to take the child to a restaurant or a movie theater as these should be closed.

If visitation is being curtailed by agreement of the parents then the parents can increase telephone or video communications between absent parent and child.

Hopefully parents will agree on methods to allow parenting time and still keep social distance. In most cases, if the parents can't agree they can return to court to work out such matters. At present, the courts are closed for matters like this. A visiting parent who thinks that the other parent is violating court orders by denying parenting time won't have any remedies until the emergency is over and the courts reopen. At that time, the visiting parent can file a contempt action.

A contempt for violation of a court order has three elements:

1. A clear court order
2. A clear violation of the order
3. The ability of the other parent to comply with the order.

In light of the Chief Judge's letter it is likely that Judges will make findings of contempt if a child is not permitted to accompany a visiting parent without something more than the declaration of emergency.  If someone shows symptoms of covid-19 they should be isolated.    A finding of contempt should not issue if a parent appeared to violate a court order to protect the safety of the child or the parent.  Protecting a child from exposure to someone with active symptoms of covid-19 is likely to be found to be necessary to protect the child and other family members.

Hopefully parents can cooperate during this emergency. However, if they cannot, consulting an experienced family law attorney may help the parties resolve the issues. If a parent thinks that a true emergency exists and they should file an action in court before the emergency is over, then they should consult an attorney on bringing an emergency action.

Can a dead man's sperm be extracted for directed conception in Massachusetts?

Two recent news stories related stories of extracting sperm after a man died for purposes of conceiving a child. In a story from California, a man died in a traffic accident and his widow had his sperm extracted and then, through in vitro fertilization, conceived and gave birth to a child. In a case from New York, Matter of Zhu, a man died in a skiing accident. His parents went to court for permission to extract his sperm. The Court ordered the sperm to be extracted and given to the parents to make all decisions about conceiving a child.

This article addresses the possibility of extraction of sperm after a man's death in Massachusetts for the purpose of a directed conception. I use the term directed conception to mean conception for the purposed of creating a legal and biological child of the deceased man. The term does not include donation to a sperm bank where the sperm can be used for conception but the child conceived will not be the legal child of the male donor. A directed conception creates moral, ethical, and legal issues that don't exist with a non-directed conception.

The first post-mortem sperm extraction that resulted in the birth of a child occurred in 1999. Since then legislatures and courts around the world have addressed the issued. In 2002 the Massachusetts Supreme Judicial Court addressed the matter in terms of a post-mortem conceived child having inheritance rights and the status as the child of the deceased.

In certain limited circumstances, a child resulting from posthumous reproduction may enjoy the inheritance rights of "issue" under the Massachusetts intestacy statute. These limited circumstances exist where, as a threshold matter, the surviving parent or the child's other legal representative demonstrates a genetic relationship between the child and the decedent. The survivor or  representative must then establish both that the decedent affirmatively consented to posthumous conception and to the support of any resulting child.

The court did not address the issue whether spouse or a parent has the right to obtain the post-mortem extraction of sperm for the purpose of conception. It is possible that a spouse or a parent may want to create a biological child even if the child is denied the legal status of an heir of the deceased.

Massachusetts has enacted the Uniform Anatomical Gift Act which allows for “transplantation, therapy, research, or education” of parts of a human body after death. The language “transplantation, therapy, research, or education does not, necessarily, include harvesting sperm after death for creating an embryo. Certainly parties can argue over the interpretation of this language and, like other jurisdictions, can go to court to resolve the issue. An argument can be made that the Uniform Anatomical Gift Act does not address extraction of sperm for the purpose of conception.

One answer to the questions posed by post-mortem sperm extraction is that the intent of the deceased must control. Legislation and court decisions from most jurisdictions look to the intent of the deceased. Lawyers, when creating estate plans for male clients should address this matter.

While it is not clear that the Anatomical Gift Act will control post-mortem sperm extractions, the formalities of that law for establishing a persons permission and intentions for anatomical gifts should be recognized by courts to establish intent for post death conceptions. The protections afforded the deceased by this act should satisfy any judge who hears a case of this nature.

I suggest that when attorneys discuss estate planning with age appropriate males that they discuss posthumous sperm donation. They should ask the client about the following:

• Does the client want to donate sperm to a sperm bank?
• Does the client want to donate sperm to a specified recipient?
• If the client directs a recipient for the sperm does the client want any child conceived from the extraction to be a lawful heir of the client?

If the client wants to leave instructions for a sperm donation then the lawyer should prepare a document that complies with the formalities of the Massachusetts anatomical gift act that states the client's desires. Any man that wants to permit such sperm extraction should consult an attorney to prepare a document that reflects his desires.

How to communicate with your Ex by email and text.

     After a couple separate or divorce they will need to communicate with each other on many issues. This is particularly true if there are children as the couple will still be parents and need to cooperate for the rest of their lives.  Divorce attorneys generally recommend   email and text communications  as the parties are bound by the written communication and the email or text may be shown to a judge. Despite the potential for presenting the emails to a judge, some people use emails and texts as an opportunity to abuse their spouse. Abuse may have been the customary method of communication during the end of the relationship and one party may not even understand how destructive such abuse can be. I have the following suggestions to parties to make communications better.

1) Forget about your history with your Ex. It is harmful to communications to continue to mention past wrongs. Telling your Ex how they made bad decisions or acted badly just alienates your Ex. If you want something done, simply ask you Ex to do the things you want done. If your Ex responds by asking for reasons then you can explain your thinking on the subject. Many times, the other party will merely comply with a reasonably stated request.

 

2) I was taught as a child to always say please and thank you. This is excellent advice for email communications. If you are asking for something, ask politely and say “please”. When you get a response, say “thank you”. You should say “thank you” even if you don't like the answer. It doesn't hurt you to say “Thank you for responding.”

 

3) Be clear in your communications. The more clarity provided the fewer mistakes are made.

 

4) Don't make threats. At least don't make threats in the first communication. While it may be appropriate to make threats later, starting with threats is never a good idea.

 

5) Don't state the obvious. If there is a court order for vision insurance, don't start by stating the terms of the divorce judgment. Your ex-spouse should know this. Politely ask for the vision insurance cards for the children. This should be sufficient on the first communication. Perhaps the second communication will require you to explain his obligations under the divorce. On the first communication assume your Ex knows what he is suppose to do.

 

     In short, treat your Ex-partner like a stranger.

     Successful communications between former partners may reduce litigation and attorney fees.

How to make property division in a divorce easier.

There is no greater waste of money in a divorce than fighting over divisionof small personal property owned by a couple. The attorney fees spent to argue over beds, sofas, kitchen table, tvs, and other household items usually exceed the value of the items. A dining room set purchased for $5,000.00 may be valued in a divorce at $300.00. As used furniture, the set may only be sold at a garage sale. Most household furniture is valued based upon what can be realized for the asset at a garage sale. It is simply cheaper to go out and buy an equivalent item than to pay attorneys to fight over it. Of course, higher value items such as house, retirement accounts, investment accounts, and collections are worth the cost of paying for appraisers and attorneys. I suggest that the parties approach division of household items with consideration of the following issues.

If there are children, the children should be given priority. The children's furniture should remain with the parent who has more parenting time than the other. The rest of the furniture in the house should also take into account the children. If there is only one tv it should remain in the house with the children. If there are two tvs then the parent with the children should get the better tv.

Most households currently have a car for each parent. Unless a car is a collector's item, each party needs a car to function in today's society. In almost all cases, judges award the cars to the party who primarily drove each car prior to separation. Cars are generally viewed as a necessary tool and not as an asset.

Both parents should try to be fair about division of household items. Any unfairness is usually met with a large increase in attorney fees. The problem is that the parent who doesn't get the household items needs to go out and purchase new items. The need to make such purchases as well as a rental security deposit and last month rent should be recognized and money should be set aside for these expenses. Treating each other fairly means that both parents end up with adequate furniture and living arrangements. This can be accomplished by possession of existing items or money to buy replacement items.

Parties need to identify items of sentimental value to the two parties and cooperate to allocate the sentimental items to the appropriate party. Family heirlooms should go to the party who broguht the item into the marriage. Again, the countervailing value is money set aside to purchase a replacement item.

Items that are only used by one party should be offered to that party. A riding lawn mower that had been used exclusively by the husband may never be used by the wife who intends to hire a service to mow the lawn. If the wife sells the mower without the husband's permission it will be a violation of the automatic restraining order and have the effect of a declaration of war that will cause the husband to fight over trivial matters. Giving the husband opportunity to take the mower or have both parties sell the mower and divide the proceeds will result in a better attitude from both parties. 

Pictures and videos are frequently the subject of litigation. It will save money if the parties pay to have the pictures duplicated so that each party can have a set. Sometimes the parties will agree to purchase a scanner so that one party can copy all pictures and give the originals to the other.

Division of personal property can be a huge drain of financial resources if the parties choose to fight over the assets. This large expense is seldom worth the money required to have the judge resolve the division. An experienced divorce attorney should be consulted to learn how the law applies to your case and to look for an inexpensive logical solution to property division.

When will an annulment be granted?

A judicial decree of annulment is a declaration that a marriage never existed. There are a number of reasons why a judge may grant an annulment but this is disfavored by judges who prefer to grant parties a divorce.

A marriage requires two competent people to go through a wedding ceremony performed by a person who is vested with the power to marry people. The formalities of a wedding require the parties to create a contract between and to comply with all state requirements. An annulment can be granted if no valid contract was created at the time of the marriage ceremony or if there was a failure to meet certain state requirements. Not every failure to comply with state procedures will permit an annulment and, in some instances, the conduct of the parties over a period of time could result in ratification of the marriage thereby making the marriage valid. An annulment can be granted if there was a lack of consent to the marriage, or a legal impediment to the marriage.

A lack of consent can occur if there was fraud relating to the essence of the marriage, duress, or mental incapacity. Not every fraudulent statement goes to the “essence” of the marriage. Examples of fraud that arises to this level are: false statements about intent to cohabit or have sexual intercourse, false statements about pregnancy and paternity of the unborn child, false statements about religion, and false statements about intention to have children. Other false statements such as statements about finances may not be sufficient to go to the “essence of the marriage.” Fraud requires a fact to be misrepresented. However misrepresentation is not the same as concealment. Failure to discuss intent to have children is a concealment and not a fraudulent misrepresentation. To obtain an annullment there must have been an actual statement made on a topic that goes to the essence of the marriage.

The grounds of duress means that at the time of the wedding ceremony a party was under duress of a level that they were unable to exercise free will. An example of this is a shotgun wedding. The threat of bodily harm or death for failure to go through the ceremony is sufficient for an annulment.

Mental incapacity can occur when a party is under the age of consent or has a mental disease or defect that interfere's with their ability to form the intent to enter into a contract. However, if a party lacks mental capacity they may be able to get married if a parent or a guardian consents to the marriage. State law varies on the age of consent and procedures for obtaining permission for incompetents to marry. It may be necessary to obtain permission from a judge to make the marriage valid.

An annulment can be granted if there is an impediment to a marriage. This means that one party to the marriage is married to another person and the prior marriage had not terminated at the time of the new wedding ceremony.

Every State prohibits certain people from getting married. The list of people prohibited from getting married is based on close family relationships. Siblings can't get married and parents can't marry their own children. Most states prohibit marrying step-children or parents-in-law. The list varies from state to state.

Annulment is a complicated area of the law and is generally difficult to obtain. In comparison, divorce can be obtained based on no-fault grounds. This means that the parties could go through a protracted trial to determine if an annulment should be granted but at the end still be married. In a no-fault divorce, the parties never contest the issue of whether a divorce should be granted. A judge must grant a no-fault divorce but does not have to grant an annulment.

If you are considering an annulment you should consult a family law attorney who can discuss your options and advise you concerning both annulment and divorce.

My spouse married me to get a green card. Can I get an annulment?

A green card is a nickname for authorization from the United States Government for an immigrant to live in the United States permanently. In the past, an immigrant who married a U.S. Citizen could apply for permanent residency.¹   When a citizen concludes that their spouse married them for the sole purpose of getting the green card and wants nothing to do with the citizen spouse, what can the citizen do? Can the citizen get out of the marriage?

An annulment is a judicial decree that that a marriage never existed. It is commonly thought that an annulment is easier to get than a divorce and less can't result in property division or alimony. However, in Massachusetts, this is not correct. An annulment can take as long as a divorce to obtain through the courts. In an annulment, a judge can award alimony, divide property, determine custody of children, and award child support. In other words, an annulment in Massachusetts is the same as a divorce except that it is much harder to get.

Massachusetts has no fault divorce which means that there is no defense to a divorce action. If one party says that want a divorce then that proves that the marriage is irretrievably broken down. That is not the case in an annulment. There is no such thing as a no-fault annulment. Every annulment must be based on specific grounds. The other spouse can contest the grounds and a judge has discretion and may find that the facts don't prove that an annulment should be granted. The result is that parties can go through a trial for an annulment and still be married after the trial. This would never happen in a divorce.

One of the reasons for obtaining an annulment is fraud. In Massachusetts, not all fraud arises to the level of obtaining an annulment. The fraud must go the “essence of the marriage.” This means that the fraud must be of such that it addresses one of the essential reasons people get married. These reasons include a desire to cohabit, have sexual intercourse, and to have children. Other reasons could go to the essence of the marriage but don't have to.

Usually, if a person gets married to obtain a green card there is no discussion about green cards. As such, there is no false representation constituting fraud. Failure to disclose something is considered a fraudulent concealment. Fraudulent concealment is not a basis for an annulment unless the concealment goes to the essence of the marriage. Failing to disclose an intent to not cohabit is sufficient for an annulment. Failing to mention that the marriage is to obtain a green card does not. In Massachusetts, failure to disclose an intent to get married to get a green card, without other facts, is not sufficient to get an annulment. However, intention to get the green card with other facts may be sufficient for an annulment.  If the parties get married, live together, have sexual intercourse and after a short period separate then it may be very difficult to show that the immigrant spouse did not intend to participate in a marriage when they went through the wedding ceremony.

If you got married and want out of the marriage because your spouse wanted to get a green card you should get a divorce and not an annulment. If you want to consider an annulment you should consult an experienced family law attorney who can advise you of your rights.

1Alan Pransky does not practice immigration law and does not know the current rules regarding immigrant spouses and green card applications. Anybody interested in obtaining a green card should consult an immigration lawyer.

Has your spouse run away?

An entertainment company is creating a documentary TV series for a cable network about individuals with a significant other (a spouse OR a long-term boyfriend/ girlfriend) who has run away and is no longer in touch (ie: "disappeared" or "gone missing"). The company is looking for people who suffered a victimization of this nature. The show seems to be based on selecting individuals an then using experts from the TV series, including private investigators, to locate the missing spouse or partner. Anyone in this situation who is interested in having their story in the show can contact melissa.casting@gmail.com
Include: Full name, age, phone#, current city& state, spouse's name, number of years married, photo of the two of you together and brief description of when/ how they disappeared.

Of course, people can get divorced even if their spouse has disappeared. The law would not sentence someone to perpetual marriage merely because the spouse chose to disappear. Service of legal process can be accomplished by other methods such as by publication, relatives, or even social media. While a person can get divorced with a missing spouse it doesn't mean that they can recover assets, alimony, or child support. The missing person may have to be located before money can be collected. Experienced family law attorneys know how to locate missing people. While no attorney will have success in all missing person cases, they will be able to find some people. They will also know what legal action to take after a person is located.

In Massachusetts the spirit of restraining orders must be obeyed as well as the letter of the order.

Until recently I advised clients that they could not be convicted of violation of a restraining order in Massachusetts unless three elements were proven:

1.  A clear order

2. A clear violation; and

3.  An ability to comply with the order.

The first two elements are fairly clear. The third element covers situations like a chance encounter in a store or a restaurant. A chance encounter should not result in criminal conviction. This still seems to be the status of the law.  However, a series of recent cases changed the element of a clear order. Now, a person subject to a restraining order must obey the clear language of the order as well as the intent of the order.

In the case of Commonwealth v Telcinord a woman was ordered to stay away from her husband and to stay 50 feet away from him. She followed him in her car as he drove his car. Presumably she stayed the requisite 50 feet away. She was convicted of violating the restraining order because following in her car was a violation of the order to stay away. The defendant's behavior by the way she drove her car indicated that she wanted her husband to know she was following him and that she intended to confront him.

It appears that engaging in behavior that is intended to cause the protected person to become aware of the whereabouts of the defendant is a violation of the restraining order. A restraining order is intended to insulate the protected person from the presence of the defendant or from any form of unauthorized contact. Any intentional contact that causes the protected person to see the defendant may be considered to be a violation of the order.

In Commonwealth v Goldman, the Court explained what “stay away” in a restraining order means. Stay away

prohibits a defendant from (1) crossing the residence's property line, (2) engaging in conduct that intrudes directly into the residence, and (3) coming within sufficient proximity to the property line that he would be able to abuse, contact, or harass a protected person if that person were on the property or entering or leaving it. A protected person need not actually be present for such a violation of the order to occur.

Stay away can no longer be interpreted as a set distance. It is a concept that the person should stay far enough away from the protected person and their home so that the protected person can go about their activities without coming into contact with the Defendant. Truly accidental contact won't be a crime but contact in the vicinity of a protected person's home or work is likely to result in a conviction for violation of a restraining order.

If you are subject to a restraining order I recommend that you contact a lawyer familiar with restraining orders so that you understand what you are permitted to do and what you are not permitted to do.

October is National Bullying Prevention Month

National Bullying Prevention Month is an annual campaign to unites communities nationwide to educate and raise awareness of bullying prevention. Bullying can occur at any age and among any group in society. Children are the usual victims of bullying. If bullying occurs in school it can continue for years as the same group of children interact in school year after year. As a result, the bullying can continue year after year. Childhood bullying is frequently dismissed as insignificant or as normal child activities.

Bullying can be devastating to victims. Nobody likes to be a victim. When the bullying continues for a prolonged period, it can destroy self-esteem, create depression, and anxiety. In extreme cases, the victims may attempt suicide.

Pacer.org created National Bullying Awareness Month to combat bullying through community partnerships and resources. Their goal is to decrease bullying by education and support.

If you are a victim of bullying, you need to report the conduct to parents, school, and even police. Depending on the specific actions, the bullying may be criminal. There are resources on the Pacer web site for victims of bullying. Bullying should never be tolerated.

Massachusetts allows conditional guilty pleas.

In criminal cases defendants often bring motions to suppress evidence (exclude evidence from trial) based on arguments that the evidence was seized in violation of defendant's constitutional rights. These motions typically argue that evidence was seized in violation of constitutional rights against unreasonable search and seizure or a confession was obtained in violation of defendant's right against self incrimination. The motion is filed in the trial court before the case goes to trial.

Previously, if the trial judge denied the motion to suppress, the defendant had a very difficult choice: either take the case to trial and preserve the right to appeal this ruling or accept a favorable plea agreement from the District Attorney which means that the defendant pleads guilty and gives up the right to appeal the ruling on the motion to dismiss. The Massachusetts Supreme Judicial Court just changed this by allowing the Defendant to make a conditional plea of guilty.

A conditional plea of guilty allows a defendant to plead guilty to take advantage of an offer of settlement from the District Attorney and still have the right to appeal the trial judge's ruling on the motion to suppress. If the appeals court rules that the evidence should have been suppressed, then the guilty plea will be vacated and the defendant will be able to have his case go to trial or have new discussions with the District Attorney for a different plea agreement. In many cases, without the evidence that can not be introduced the District Attorney may choose to drop the prosecution and dismiss the criminal case.

Allowing conditional guilty pleas is likely to cause more defendants to plead guilty thereby reducing the cost of defending the case for defendants and reducing the number of cases that go to trial. It is expected that the judicial system will save money and resources as well. If you have a criminal case you should consult an experienced criminal defense attorney who can give advice on conditional guilty pleas.

Smart Homes and Divorce

People now have the ability to interact with their homes in a way that wasn't even imagined ten years ago. We now have the ability to control things when we are away from our homes. We can turn lights and appliances on and off. We can change the temperature in the home by controlling the thermostat.  We can set off alarms, activate cameras and look inside the home, and speak through devices to people in the home and outside. We can track cars and cell phones. We can even monitor driving habits.

All of these smart applications are designed to make our lives better. However, they can allow a new type of abuse and harassment when a couple split up and one partner moves out of the home. The person out of the home can now control all of these devices and use them to annoy or abuse the partner in the home. Imagine the distress created if one partner finds out that their whereabouts have been tracked by a smart application on their phone or car. People can be hit with large heating and utility bills if the heat is turned up or lights turned on when a person isn't home.

No matter how much trust exists within a marriage, precautions should be taken when a couple separate. The first thing that should be done is to change all passwords for all devices. You may be able to block the other partner from using the applications. All accounts for these items can be transferred into the name of the spouse in the home. The other thing that can be done is to get a court order that prohibits the other person from using the applications.

In most divorces, the partner remaining in the marital home obtains a court order that gives that person exclusive use of the home. Sometimes a similar order issues for use of cars. It is a simple matter to add language that prohibits the other partner from using any smart applications or devices that impact the home, car, or cellphone. Violation of this order can result in sanctions from the court.

Perhaps the biggest fear is that one spouse can track the movements of the other and then use this information in court in a divorce trial. Obtaining an order that prohibits use of the tracking applications should prevent any use at trial of this type of information.

Any time a household breaks up and results in a divorce or other litigation the parties should consult an experienced family law attorney. This attorney can give advice and propose a course of action to minimize problems from smart technology and to obtain a court order to prohibit abuse by smart technology.

Will the Child Tax Credit be a substitute for the Child Dependency Exemption?

Starting with tax year 2018 the dependency exemption does not exist anymore. Tax law, in an effort to simplify returns has eliminated the dependency deduction. Instead there is a Child Tax Credit which can be worth up to $2,000.00 per qualifying child.

The IRS has not published publication 504 (Divorced or Separated Individuals) for 2018. As a result, it is not clear if parties may agree which parent will receive the Child Tax Credit. While experts expect that the Child Tax Credit  may be allocated from one parent to the other by agreement, it is possible that only the custodial parent will be able to receive the credit.

The IRS may allow parties to specify which parent will be able to claim the credit. If that happens then existing judgments need to be examined to determine if the language about dependency exemptions may apply to tax credits. If not, then parties may need to file a modification to have the Child Tax Credit treated as the Child Dependency Exemption had been treated. A modification may be necessary for obtaining cooperation of the other parent or it may be a requirement under tax law for allocation of the credit.  A modification by agreement of both parties can qualify for a simplified procedure as a joint petition to modify.

Interpretation of your divorce judgment, modification of a prior judgment, and understanding the Child Tax Credit may require the assistance of a family law attorney.

Don't fall for this alimony trap!

In 2014 I wrote about a child support trap. In this article I described the trap happening when two parents agree to change child support between themselves without court approval. After years of following the out of court agreement, the parent who received less support files a contempt action. Typically the court will enforce the order and order payment of back child support even if the out of court agreement is fair, in writing, and signed by the parties. The out of court agreement is not recognized as valid for any reduced payments made before the filing of the contempt. A similar fact patern was the subject of a case involving alimony.

In the case of Smith v. Smith, Mass. App. Ct. No. 17-P-765 (6/7/2018) the divorce left the Husband paying alimony to the Wife. Over the years, the parties entered into a series of agreements resulting in the Husband paying money for the benefit of the parties' adult children and reducing the amount of alimony paid to the Wife. After a number of years of these reduced payments, the Wife filed a contempt because the payments by the Husband were less than the court order. Unlike cases involving child support, the Husband argued equitable defenses based on “detrimental reliance” called laches or estoppel. The Court did not rule on the detrimental reliance argument. Instead, the Court ruled that alimony can be modified retroactively to consider the agreements of the parties. The retroactive modification must be based on all of the statutory factors that a Judge is require and permitted to consider when making an alimony decision. The Appeals Court sent the case back to the trial judge to make a decision based on the alimony factors. This probably will cause a second trial for the parties but it is likely that the Husband will have some benefit from a retroactive alimony modification. However, if the Husband had a significant increase in income or the Wife had a significant decrease, it is possible that the Husband could end up paying more in alimony than the original order.

The best course of action and the correct cause of action is that if the parties make an agreement to modify alimony or child support that they should seek court approval of the agreement. Massachusetts has a simplified procedure for modifications by agreement. They are typically approved based on the documents only and don't require that the parties physically appear in court.

If the parties don't want to seek court approval then they run the risk of one party paying large sums of money for arrears of alimony or child support. In this instance, they should put their agreement in writing and each party should sign the agreement before a notary public. While no court has approved this, I have a suggestion on how to write the agreement. Massachusetts does allow alimony to be paid “in kind.” This means that alimony can be paid directly to creditors instead of to the ex-spouse. As an example, if the wife has a history of not paying the mortgage, then the court may order the Husband to pay a portion of alimony each month to the mortgage company and the balance to be paid to the Wife. This concept can be applied to out of court agreements. Using the Smith case as an example, I can illustrate my suggestion.

In the Smith case, the Husband was ordered to pay $650.00 per week. One of the reasons for reduction of alimony was that the Husband paid tuition for the daughter's graduate school tuition. The could have written an agreement that state that the two parties agree to pay $400.00 per week for the daughter's tuition with each party paying $200.00 per week. They could agree that the Husband will pay the Wife's $200.00 per week directly to the school and pay the wife the remainder of $450.00 per week. This could be viewed as a payment in kind and may not be considered a contempt. The problem with this is that the Wife would be taxed on the $200.00 per week and the Husband would have a tax deduction.

When considering an agreement to change a child support or alimony award, the best way to proceed is to consult an experienced family law attorney who can draft an agreement and submit it to the court for approval.

Massachusetts Revises Child Support Guidelines

Child support in Massachusetts is controlled by Child Support Guidelines. The Guidelines are a formula approach to child support based on the parents' incomes and certain expenses (health, dental, vision, insurance, child care costs, and other child support obligations.) These guidelines were issued to comply with federal law that mandates the state review the guidelines every four years. In 2017 the state issued updated child support guidelines. Now, less than one year later, Massachusetts is revising the child support guidelines. The “new” guidelines are not a revision of the 2017 guidelines. The new set is merely a correction from mistakes made in the official child support guidelines worksheet.

From almost the instant the 2017 guidelines were announced it was discovered that the worksheet contained errors. This resulted in the state pulling the form from the state website for a period of time. Apparently, the first revisions did not correct all of the problems. The state has issued revisions and a new worksheet that takes effect on June 15, 2018.

In 2017, the guidelines had a different formula when one or more children are 18 or older than for children under 18. The new worksheet corrects problems that occurred when a one or more children were over 18 and other children were under 18 years old. Another correction relates to health care costs when the parents have equal parenting time.

What do these changes mean? In many cases, the calculator will result in the same amount for child support as the 2017 calculator. I expect that for people one or more children over 18 and other children under 18 that the amount of child support will increase. The only way to find out is to use the new calculator to calculate child support with your facts.

People should consult a family law attorney to understand their rights and obligations under the revisions to the Child Support guidelines.

In Massachusetts you can't sue for fraudulent inducement to marry.

What do you do if you find out that your spouse lied to induce you to marry? What do you do if your spouse married you just to get your money? What do you do if your spouse lied to get you to marry for immigration status? What if you find out your marriage was based on fraud and deceit? One woman, after she discovered that her husband lied about loving her got an annulment and then sued him for damages for the fraud and deceit under a cause of action called “Fraudulent Inducement.”

Fraudulent inducement is a cause of action that occurred in an era when divorce was uncommon and only granted on particular fault grounds. Since Massachusetts created no fault divorce the number of annulments in the state has dropped and it is extremely rare to find a person suing for fraudulent inducement. However, in the recent case of Shea v. Cameron the wife sued her former husband for fraudulent inducement after an annulment. She found out that Fraudulent Inducement is no longer recognized in Massachusetts.

In 1938 Massachusetts enacted laws that abolished three old causes of action relating to marriage: Breach of contract to marry (G.L.c. 207, § 47A), Alienation of affection, and criminal conversation (G.L. C 207,§ 47B). The act which abolished these causes of action was called the “Heart Balm Act.” Heart Balm is a legal phrase that means compensation for emotion injuries to the heart. In other words, money can soothe a broken heart. The legislature did not specifically abolish fraudulent inducement. As a result, Ms. Shea tried to sue using this old cause of action to get money from her former husband. She was undoubtedly surprised when the Court dismissed her action without awarding her any money.

The court held that abolishment of the tort of breach of promise to marry included other related torts such as fraudulent inducement. The Court didn't state that there was no remedy for a scoundrel who lied to induce marriage. The Court held that a judge in a divorce action has discretion to consider fraudulent inducement when rendering a divorce judgment. In this case, Ms. Shea chose annulment over divorce and, in doing so, waived any rights she had for fraudulent inducement to marry.

If you believe that you were inuced to marry by fraud then you should consult a divorce lawyer who can discuss the choice between divorce and annulment.

Should you file for divorce because of the new tax law?

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In writing this article I am not encouraging people to file for divorce. In my opinion, the decision to divorce or stay married should be based on a desire to spend the rest of your life with your spouse. It should not be based on financial factors. There are many people who are contemplating divorce and others who are contemplating the optimum time to file for divorce. These are the people that should consider this article.

In December 2017 Congress passed a tax reform law. One of the many changes in this law is that the way that alimony is taxed was changed. Under current law, alimony payments are deductions to taxable income for the payor and taxable as income to the recipient. For judgments after December 31, 2018, that order alimony, the alimony will no longer be deductible as taxable income or taxable as income. It will be treated like child support and have no effect on the taxes of the parties. The change in the law will not change the tax consequences of alimony judgments that enter prior to December 31, 2018.

For people who are contemplating divorce in Massachusetts the following questions should be answered before considering if you should file for divorce quickly:

1. Am I likely to pay or receive alimony?
2. If I am likely to pay or receive alimony will the alimony award be so significant that I should be concerned with the tax consequences?
3. How does the December 31, 2018 deadline apply to Massachusetts divorces?
4. What happens if a current judgment of alimony is modified or changed?

1. Am I likely to pay or receive alimony?

In Massachusetts, alimony is ordered when there is a need for spousal support. There are a number of factors that a judge looks at but a simplified view is that there is no need if each spouse earns enough money to support themselves. Alimony is not designed as an income equalizer. It is designed to provide support to a spouse who can't support themselves without additional funds. In an ideal situation, the standard is the ability to maintain the lifestyle that the couple enjoyed before divorce. In many divorces, neither party can maintain the same lifestyle because they are now supporting two households instead of one. In this case, there may be a need when there is a significant difference in income between the parties.

When the court considers alimony the court also considers child support as a factor. If child support is being paid, then alimony should not be ordered unless the combined income of both parties exceeds $250,000.00. In other words, if the combined income is under $250,000.00 then alimony is probably not a possibility. Some judges may order alimony despite the payment of child support when the parent with the greater income is the recipient of child support.

2. If I am likely to pay or receive alimony will the alimony award be so significant that I should be concerned with the tax consequences?

Of course, one can consider that any increase or decrease in taxes is significant. On the other hand, the amount of alimony paid may be such that parties may decide that it is better to save on attorney fees than to fight for alimony. In Massachusetts, there are limits on both the amount of alimony paid and the length of time that alimony is to be paid.

The amount of alimony ordered in Massachusetts is between 30% and 35% of the difference between the income of the recipient and the payor. Income for alimony purposes does not include capital gain income, dividend income, and interest income from assets evenly divided between the parties and the first $250,000.00 in income when child support is ordered. This means that if there is a $10,000.00 difference in income between the parties the court could order alimony in the amount of $3,000.00 to $3,500.00 per year. If there is $100,000.00 difference in income the court could order alimony in the amount of $30,000.00 to $3,500.00. If child support is being paid and there is a combined income of $260,000.00 then only $10,000.00 should be eligible for alimony determination.

The length of time that alimony may be paid in Massachusetts varies from 50% of the length of the marriage in short term marriages (under 5 years) to lifetime alimony for marriages over 20 years. In very short marriages, it may not be worthwhile for the parties to seek alimony.

3. How does the December 31, 2018 deadline apply to Massachusetts divorces?

The Tax Reform law effects any divorce or separation instrument executed after December 31, 2018. It appears that any separation agreement or judgment executed prior to December 31, 2018 would be under the existing tax laws with alimony deductible if paid and taxable if received. However, Massachusetts divorces have a three month waiting period after the initial divorce decree enters (called decree nisi) and the divorce judgment becomes final (called decree absolute.) It appears that the IRS has not issued regulations explaining how the effective date is to be applied to Massachusetts divorces. In order to be completely certain that any alimony judgment is under the current tax laws then the decree nisi must enter by October 2, 2018. If the parties are divorcing by an uncontested divorce which is called a 1A divorce then the judge must approve the separation agreement by August 31, 2018.

4. What happens if a current judgment of alimony is modified or changed?

Any current order of alimony that is modified or changed after December 31, 2018 will lose the current tax deductibility and will be controlled by the tax reform law. This means that even if your current agreement calls for payments to be deductible from taxable income, Federal law will control and you will not be able to deduct alimony payments if modified after this date.

Additional considerations

The change in tax law only effects taxes paid to the United States. Taxes paid to the Commonwealth of Massachusetts will still be deductions to taxable income for the payor and taxable as income to the recipient.

A contested divorce in Massachusetts that does not settle takes about two and a half years to litigate and conclude. This means that you can only rush a divorce to preserve the current tax treatment if it is an uncontested divorce or a contested divorce that settles before August 31, 2018. A contested divorce filed in 2018 won't go to trial in time to beat the December 31, 2018 deadline. Litigation is not the only way that parties can reach an agreement on terminating a marriage. Mediation and other forms of alternate dispute resolution can help the parties reach a settlement.

This is a complicated area of law. If you are considering a divorce and think that alimony is a possibility then you should consult an experienced divorce lawyer to discuss the applicability of the Massachusetts alimony law and if the Tax Reform Law may be an issue for you to consider.