Sunday, December 29, 2013

It's snowing. Do I have to shovel again?

Until 2010, Massachusetts landowners had two standards on snow and ice removal: natural accumulations and unnatural accumulations.  This meant

  •  that if you didn't shovel, plow, or drive over the snow, it was a natural accumulation and the landowner couldn't be sued if someone fell in the ice or snow. In 2010, the Supreme Judicial Court abolished the distinction between natural and unnatural accumulations in the case of Papadopoulos v.Target Corp., 257 Mass. 368 (2010). Instead, the court declared that every landowner has a duty to “act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk.”

    How is a landowner suppose to apply this standard when the snow starts falling? When is it reasonable to not remove the snow? The analysis should start with looking at use of the property by lawful visitors. A commercial property that expects customers to enter all day long and into the dark of night has a greater obligation to remove snow and ice than a landlowner who expects a visit once a day of mail delivery. Commercial property should remove snow and ice early and often. Also a residential landlord who has the responsibility to remove snow due to contract or the state Sanitary Code must remove snow with diligence. However, a residential homeowner has a lower duty of care. The residential landowner may not have the need to attack the driveway as soon as the snow stops falling. If no lawful visitors are expected, the homeowner doesn't have to remove snow at all. However, if an unexpected visitor arrives, the homeowner may have problems.

    In addition to the duty of care imposed by the Papadopoulos decision, many cities and towns in Massachusetts impose duties to remove snow and ice. For example, the City of Boston requires property owners to remove snow and ice from sidewalks within three hours after snowfall ends. My town requires removal of snow and ice from sidewalks if the sidewalk is along a walking route for school children.  Check your town's website to find out what your town requires.   

    So how is a property owner to know when to remove snow? The problem is that under the Supreme Judicial Court decision, the landowner may not know for certain until someone fallls on the snow and gets injured. The result is that when in doubt, a landowner should remove snow and ice. Commercial landlords should have contracts for removal. Residential property owners should remove snow during daylight within a short period after the storm ends. All property owners should keep an ample supply of salt or chemical ice melt to prevent ice from forming when snow melts and then temperatures drop.

    If a landowner is confused over their obligations they should consult an experienced attorney for advice. But before you call the attorney, shovel your driveway.

    Sunday, December 22, 2013

    Threats to publish nude pictures resulted in conviction for extortion.

    According to an article in The Valley Dispatch, a man was convicted of extortion as a result of texting threats to publish nude pictures of the victim. In this case, a the victim got a restraining order against the Defendant. He then sent texts and made calls to the victim's cell phone threatening to publish nude pictures of the victim on Facebook. Besides violating the restraining order, these threats also constituted the crime of extortion.

    The elements of the crime of extortion are (1) a malicious threat (2) made to a named person (3) to accuse someone of a crime or to injure someone's person or property (4) with intent to extort money or something of value. In this case, a threat to publish nude photos is a malicious threat. He made the threats to a named person, the woman who took out the restraining order. While publishing nude photos is not accusing someone of a crime, it would constitute an injury to the person of the woman. Harm to reputation or ability to obtain employment is harm to a person. Extortion is not limited to physical harm. It includes emotional and psychological harm. The element of intent to extort something of value means of value to the Defendant. It does not have to be money. In the case of Commonwealth v. Miller, 385 Mass. 521 (1982) the value obtained was sexual intercourse.

    When a restraining order issues, the person who is restrained should consult an experienced attorney to understand the requirements of the restraining order to avoid going to jail.

    Sunday, December 15, 2013

    Once divorced – create a calendar

    Getting divorced can be one of life's most stressful events. Once the divorce is ordered by a Judge, there is tendency to relax and start looking at life after divorce. It is a time to relax, reorganize activities, and to start ignoring the ex-spouse. Very few people want to continue to dwell on the terms of the divorce. However, this is exactly what should be done, at least for a little while.

    Most divorce judgments and agreements have rights and obligations that are time specific. Right after the divorce is granted, each spouse should create a calendar that has all the dates, and obligations created by the divorce. If there are children, the calendar should have all dates until the children are emancipated. For some people, emancipation may occur at age 18. In Massachusetts, many children are not emancipated until age 23. I recommend that parents in Massachusetts create a calendar with dates created by the divorce decree up through the 23rd birthday of the youngest child..

    Failure to create a calendar can result in loss of rights or even litigation and payment of your ex-spouse's attorney fees. The following dates may be addressed under the separation agreement or divorce decree:

    • Visitation schedule

    • Holiday visitation schedule

    • Vacation schedule – Many agreements require parties to select time for vacation plans 5 or 6 months in advance. If a person fails to make the selection, they may find that the other parent will select time that prevents them from vacationing as planned.

    • Tax returns – Many agreeements require parties to exchange tax or earnings information on a regular basis. Failure to do so can result in a contempt of court proceeding.

    • Selection of summer camp – The agreement may require a party to notify the other of summer camp proposals by January or February of each year. Failure to do so may excuse the other parent from contributing to the cost of summer camp.

    • Sale or refinance of real estate – Frequently dates are imposed that require the sale or refinance of real estate. Since it takes months to do either, a calendar entry should be made months before the deadline or it may be impossible to meet the deadline.

    • Life Insurance and Health Insurance – There may be deadlines for purchasing insurance.

    • Payment of bills

    • Other obligations

    After getting divorced, review the agreement or judgment. If there is any question interpretation of the provisions of the agreement, consult the attorney who represented you in the divorce.

    Sunday, December 8, 2013

    Can you get a Massachusetts Divorce on-line or over the internet?

    Massachusetts does not allow on-line or internet divorces. Marriages are created by the granting of a license by the state and can only be terminated by state action. In divorces, the state is represented by a Judge of the Probate and Family Court who must hear evidence and make findings before granting a divorce. The judge must find that the terms of the divorce are fair and equitable. Even if the parties have an agreement or a settlement, they must still appear before a judge and present evidence. A Judge must find that any children are protected in the settlement. Children are viewed as incompetent and courts have the duty to protect incompetents.

    Any person who represents that a divorce can be obtained over the internet is committing a crime in Massachusetts and, if convicted, can be punished by inprisonment. Masschusetts General Laws c. 208, § 44 punishes any person who claims to grant a divorce other than a Judge. Masschusetts General Laws c. 208, § 42 punishes any person who procures or assists someone in obtaining a false or counterfeit divorce.  Only attorneys can assist people to obtain divorces.  If you live in Massachusetts and want to get divorced consult an experienced divorce attorney.

    Sunday, December 1, 2013

    My Ex and I agree to change the terms of our divorce. Do we have to go to Court?

    Once a Massachusetts Court has made an order or judgment in a divorce or paternity case it is enforceable by all of the powers of the Court and State for enforcement of judgments. This means that any change must be approved by the Court. Of course minor changes in the parenting plan don't need court approval. (If the parties swap weekends, as an example, no court involvement is required.) However significant changes, such as anything to with money or finances will need court approval.

    There is a trap if the parties don't change the court order.  As an example, assume that the divorce required the Husband to pay $300.00 per week. The ex-spouses agree that the child should spend more time with Father and enter into an agreement for the child to live half of the time with each parent. Because the child is with each parent for an equal amount of time, the parents also agree that the Ex-Husband should stop all child support payments. The Ex-Husband, relying on this agreement, stops the payments. Five years later, the Ex-Wife files a contempt in Probate Court for the five years of unpaid child support. Since the Court never approved the agreement, the original order is still enforceable. The Ex-Husband owes five years worth of support or $78,000.00 plus interest and possibly attorney fees.

    This trap can be avoided by the parties seeking Court approval of their agreement. Parties tend to avoid court because they think it will cost a lot of money. However, the Probate and Family Court has a simplified proceedure to approve agreements of this nature and have forms available on their website which the parties can fill out and submit. This procedure is explained in Rule 412 Of The Supplemental Rules Of The Probate And Family Court.
    Every person in Massachusetts who agrees to change the financial terms of child support or spousal support should not rely on the agreement. Instead, they should use the simplified proceedure and have a judge approve the changes. Then, they can safely rely on the order of the court. An experienced Massachusetts Family Law Attorney can help parties present their agreement to the Court for approval.

    Sunday, November 24, 2013

    Can I obtain an Annulment?

    Annulment, like divorce is a judicial declaration that a person is no longer married. The difference is that in a divorce, the court terminates the marriage, An annulment is a declaration that the marriage never existed. An annulment that is granted by a court is not the same thing as a religious annulment. Some religions will grant a religious annulment after a court has granted an annulment or divorce.

    A marriage is an agreement between two parties and sanctioned by the government in the form of official recognition of the agreement. The marriage contract must comply with traditional contract principals and the official requirements of the state. When a couple go through a marriage ceremony but violate the law of contracts or fail to meet the requirements imposed by the state then the marriage may not have been created. This means that the validity of the marriage and the ability to obtain an annulment are based on facts that occur at the time of the wedding ceremony and not anything that happens after the ceremony. As a result, it is not relevant that the parties never consummated the marriage or were abusive or unfaithful.

    Grounds for an annulment are based on contract principals or governmental interests. An annulment can be granted for failure to enter a contract. In other words, a person did not actually agree to the marriage. Examples of these contract reasons are fraud, undue influence, duress, or unable to have form consent such due to incompetency or underage. Governmental interests prevent a marriage when there is an impediment or a close family relationship. An impediment means that a person is married to someone else. Family relationships are barriers to marriage because our society does not want siblings to marry, parents and children to marry, or other close family members to marry.

    Even though annulment is a declaration that a couple were never married, once a couple has gone through a wedding ceremony, neither party can get married to someone else without a judicial annulment. Annulments are rare in Massachusetts and anyone who is contemplating an annulment should consult an experienced family law attorney. 

    Wednesday, October 16, 2013

    Problems with trial separations

         Many couples who experience problems in their relationships choose a trial separation in the hope of having some time off and then improving their marriage. It is my experience, as a divorce lawyer, that trial separations lead to divorce. When it comes to separations, absence does not make the heart grow fonder. My experience is that absence makes the heart grow suspicious and jealous.

         The biggest problem in separations seems to be the one year lease. Most couples who separate don't have the luxury of two homes. Typically, one person moves out of the home and rents an apartment. For most people, this means that they sign a one year lease and obligate themselves to pay rent for a year. As a result, the person who moves out thinks that the trial separation will last the full year. During this year, one person remains in the home with the children and the other enjoys the social freedom of independent living. The person in the home lacks the social opportunities available to the other. The natural inclination is to consider the apartment rented for a year as a year long opportunity to enjoy sex with other partners. It doesn't matter if the person commits adultery, the spouse remaining in the home will suspect that adultery occurs on a regular basis. This attitude won't help the couple reconcile.

         When a couple separates, they have to maintain two households instead of one. This will cost more money and put a strain on the finances of the couple. In addition, the couple will talk less about expenditures and there is an opportunity for either or both to spend money in ways that the other spouse would not approve. This lack of financial control can drastically increase the combined debt of the couple which must be addressed in the event of a divorce. Just as assets are divided at the time of divorce, debts must be divided as well. In addition, maintaining two households and increasing the expenses can result in a lower standard of living. The standard of living is one factor in both property division and alimony if a divorce occurs.

         A long term separation allows the other spouse the opportunity to hide assets. The longer the period of separation, the more money can disappear. While one party may be trying to reconcile, the other may be trying to improve their position for the future divorce.

        A separation is the equivalent of treading water. If the parties are trying to reconcile, the separate residence makes it difficult. Yet, as long as they are trying to reconcile, they won't be looking for new relationships. Their life is put on hold.

         If a couple is thinking about separating, they should consider other methods of working on their relationship. They should consider therapy. They should also remember that without intimacy, almost every relationship will fall apart. Many couples consult with divorce lawyers to understand the reality of the cost of divorce and life after divorce. For most couples, separation leads to divorce and not improvement in their relationship.

    Monday, October 7, 2013

    How to Gracefully Exit a Relationship

    Because I am a divorce lawyer, I was asked to read and review a book entitled “How to Gracefully Exit a Relationship” by Frank Love. I reviewed the web site,, and agreed to read the book. To my surprise, I found the book gives great advise to people who are terminating a relationship or getting divorced and also to people starting relationships. I recommend this book to everybody who is in a relationship, wants a relationship, or wants to terminate a relationship.

    Frank writes in easy to read language about his solution to relationship problems. His solution is communication. I assume that everybody understands that communication can improve relationships, but Frank gives specific advice and examples. He acknowledges that a break-up can occur in any relationship. So his advice is to discuss this possibility early in the relationship. By discussing the potential in advance, if a break-up occurs, the conflict should be reduced.

    Frank also suggests that people discuss issues that are important to the parties and their expectations of the relationship. Do the parties expect that their partner will be monogamous? Are there expectations that if not met will mean the end of the relationship?

    Frank mentions that he has suffered through his share of break-ups and has learned from the experience. He has learned that a broken relationship doesn't mean failure. It can mean that the parties have changed and are ready to move to the next phase of life. Once the blame disappears, the parties can discuss the break-up calmly and rationally. As he describes it, a break-up is not a rejection, it is a conclusion.

    I recommend this book for everybody who is in a relationship or is leaving a relationship. However, I think the people who can benefit the most from this book are people who are just starting a relationship. This book can help people have better relationships and maybe make your current relationship last a lifetime.