Saturday, August 31, 2013

Dangers of Do-It-Yourself (DIY) Divorce

Hiring a lawyer to handle your divorce can be a very expensive proposition. Many people choose to represent themselves instead of paying an attorney. This is commonly called “do-it-yourself” divorce or simply DIY divorce. While this may save money in the short run, it may be very expensive in the long run.

I compare getting divorced without an attorney to purchasing home owner's insurance. People hate paying the premiums and if a claim isn't filed, they feel like they wasted the money. However, if a casualty occurs, people are extremely happy that they have insurance. The same thing happens with lawyers. If a problem occurs, people are happy that they have a lawyer. Once a problem occurs, if you don't have a lawyer, you may be stuck with something that can't be changed. Judges hold people who do divorces without attorneys to the same standards as experienced lawyers. They don't tell people that they can do things better. They don't tell people when they make mistakes.

Some people think that they can get divorced by themselves because they can purchase forms from the internet. These internet forms can be particularly dangerous for people. These packages claim to provide all the required documents that a couple needs to complete and file a divorce in Massachusetts on their own. These forms may appear to be tailored for Massachusetts but the basic form may be designed for all states or be modified from a form for a different state. As a result, there may be provisions that don't work well or at all in Massachusetts. These forms tend to be one size fits all. Every marriage is different from others and every divorce is different from all others. The forms don't have the ability to address the unique problems of every divorce and they don't explain how the law applies to each party and the children. Lawyers don't just draft documents, they help clients understand how the agreement and the law applies to their unique situation.

People who do their own divorces and draft their own divorce agreements often have problems for many different reasons including:
  • They don't understand the legal jargon
  • They make mistakes filing out forms
  • They miss filing dates
  • They agree to court orders without understanding their legal and financial consequences
  • They don't understand the tax consequences and don't consider taxes when making decisions
  • They are unable to respond to legal issues that arise unexpectedly
  • They think that judges will protect them. In some instances judges will manipulate people without lawyers to agree to terms that the judge has no power to order without an agreement.
  • They agree to things that cannot be reversed or modified.
  • They don't know the rules of court. The rules of evidence can be particularly problematic. Frequently people go to court thinking that they can prove something at court only to find out that they can't present any evidence at all because they don't understand the rules of evidence.
Some people have filed their own forms and thought that they were divorced when they were not. They then married another person and committed the crime of bigamy.

It is cheaper to do the divorce correctly the first time. Hiring an experienceddivorce lawyer may save money when you consider that some of the decisions made in a divorce will last the rest of the person's life.

Sunday, August 25, 2013

Remy Murder Case: DA doesn't deserve criticism.

A case in Massachusetts that has received national attention is the unfortunate murder of 27 year old Jennifer Martel. The person arrested for this murder is 34 year old Jared Remy. He is the son of former Red Sox star and current Red Sox announcer, Jerry Remy. This case has received attention because of the brutal way the woman was murdered, the celebrity status of the father of the murderer, and the fact that the police arrested Jared Remy the day before the murder and he was released by the court. The press in the Boston area has criticized the District Attorney, Marian Ryan, for the release of Jared Remy on bail the day before the murder. In this case, the attacks on the DA by the Boston press are unjustified.

I am not involved in this case so the facts, as I understand them, come from news reports on the internet. These reports can be found on the web sites of the Boston newspapers.

Jared Remy has a long history of wrongful behavior. He has been arrested at least fourteen times, had two restraining orders from different women in the past, and was charged on one occasion with violating a restraining order. However, there was no documented incidents of abuse in the Remy-Martel relationship and all previous charges of violence were at least eight years old.

During the night of Tuesday, August 13, 2013 the police were called to the home shared by Jared Remy and the victim. They arrested Remy for domestic assault and battery based on statements by Martel that Remy had pushed or slammed her head into a bathroom mirror. The police noted that there were no marks on the mirror, no damage to the mirror, and no bruising or other marks on Martel. Martel also declined medical treatment. In other words, there was no physical evidence to corroborate the claims by Martel.

Ms. Martel obtained an emergency abuse restraining order during the night. This order was issued based on a telephone call in which Ms. Martel spoke to a Judge. The order probably ordered that Remy stay away from Martel and their home and not abuse her. The order, pursuant to Massachusetts law, expired at 9:00 AM at which time, Ms. Martel had the ability to appear before a Judge in Court and request a restraining order against Remy for a longer period of time. Ms. Martel failed to appear in Court the next morning to request the restraining order. The District Attorney’s office called Ms. Martel when she did not appear. She told prosecutors that she did not want them to extend the emergency restraining order. Jared Remy was arraigned before the Court and Remy was released on personal recognizance with a bail warning and a no-abuse order. The Court did not order that Remy stay away from his home or Martel.

A bail warning is warning given to a defendant that they are under an order not to commit any crimes while they are released on bail. If they commit any crime, no matter how minor, the defendant can be held without bail while awaiting trial. A no-abuse order is an order not to commit abuse against the victim of the first crime.

Thursday night the police again responded to a call to the shared home of Remy and Martel. They found Martel with multiple stab wounds. She died shortly after the police arrived. Witnesses saw Remy on top of Martel stabbing her on their patio. One neighbor tried to stop him. When the police arrested Remy his clothes were soaked in blood. According to the press, there is no question about who committed the murder.

Many news reports and commentary in the Boston area blame the District Attorney for the murder. According to these reports, the DA should have sought to impose a stay away order on Remy as a condition of bail. While this may sell newspapers, it doesn't make much sense.

The court ordered Remy to not abuse Martell and to not commit any crimes. Obviously, the court orders did nothing to prevent the murder. If a person is willing to commit murder, why would anyone think that they would obey a court order to stay away from a person. He violated two orders of the court and committed the most heinous of crimes. Why would one more crime deter him?

In Massachusetts, bail hearings are controlled by G.L. c. 276, § 58. Under this statute, the purpose of bail is to assure the person will return to court when ordered to do so. While Remy had a lengthy history of court cases, the press never reported that he failed to appear in court when ordered to do so. In fact, a lengthy criminal record without a “default” for failing to appear is a good reason to release a person on personal recognizance. Of all the articles in the press that I saw, none of them gave any reason for a judge to impose bail other than he committed a murder the next day. I assume that the other factors that a judge must consider under the statute supported the release on personal recognizance.

Masssachusetts has another statute that applies to bail hearings. The second statute applies if the District Attorney chooses to argue to the court that a person is dangerous and should not be released without conditions. This statute, G.L. c. 276, § 58A, requires notice be given to the defendant and that he be allowed to prepare for an evidentiary hearing on the matter. In this case, given the information known on Wednesday morning, there is nothing to suggest that a judge would have found Remy dangerous under the statute and have done something that would have prevented the murder. (As I indicated above, an order for Remy to stay away from Martell would likely be ignored by Remy as evidenced by the fact that he chose to commit murder.) The victim alleged domestic abuse of pushing her into a mirror. She had no visible injuries or bruises. The mirror had no marks or damage. She refused medical care. She didn't appear in court to extend a restraining order. She told the police that she didn't want a restraining order and wanted Remy released. If she testified, she probably would have testified that she was not in fear of harm. Remy had a record of eight years of no problems and no prior evidence of violence with Martell. While there was a record from more than 8 years ago that would have supported a finding of dangerousness, there was no recent record. Given these facts and the statement by the victim that she was not in fear, there was no basis for the District Attorney to request a dangerousness hearing.

It is easy to look at the murder and blame the District Attorney for failing to control Remy. However, given the laws in Massachusetts and the facts in this case, the District Attorney could not have provided more protection to Martell.

It appears that Martell stayed away from the home with Remy until Thursday night when she returned to Remy the engagement ring he had given her. Perhaps she should have consulted an attorney before she approached Remy about a breakup. While I am not blaming the victim, I think that people can take some easy steps to avoid confrontation. Martell could have brought someone with her, or met Remy in a public place. She could even arrange for a police officer to accompany her when she returned to the house. When domestic abuse occurs, both parties should consult an experience lawyer for advice.

Monday, August 12, 2013

Should Massachusetts Family Court Conduct Virtual Hearings?

A man in Georgia received a summons to appear in Massachusetts for a child support hearing. He didn't have the money to travel to Massachusetts so the Court held a hearing without him. Since he didn't appear, the Court entered an order greater than his take home pay. He couldn't pay the order in full and, since the money is taken out of his paycheck, he lacks the ability to pay his bills. All he had to do was to show up in Massachusetts, show a pay stub, and fill out a financial statement. If he had done these things, the court would have entered a reasonable order for child support.

A man in Nevada received a summons on a contempt action claiming that he owes $1,500.00 for unpaid medical bills. The problem is that the medical bills were never sent to him. He never had the ability to pay the bills. Since he got sued, he now has the choice of traveling to Massachusetts to defend the action, hiring a lawyer, or paying the money even if he doesn't owe it. The least expensive choice is to pay the money.

These stories are calls that I received from potential out of state clients who were sued in Massachusetts. In both cases, and in many others, litigation in Massachusetts Probate and Family Court about child support and other financial issues results in a miscarriage of justice. Even if the out of state defendant fights the action, they lose because the cost of travel and fighting is so high. Usually, the out of state defendant is facing the potential of multiple trips to fight the litigation. What is needed is the ability to have out of state Defendants present their cases without traveling to Massachusetts and still giving both sides a fair hearing. The internet allows the Court to change the rules to provide a low cost, fair hearing.

Under current law, Family Court hearings in Massachusetts require that all participants attend every court hearing. Failure to do so can result in expensive financial orders or loss of rights. This requirement is based on the concept that the Judge's time is very valuable and that the parties must present their arguments to the Judge in person. The system was created before the invention of the internet which allows easy, low cost video teleconferencing, and before the invention of the telephone speaker phone. The Massachusetts court system is also based on a concept that the courts are distributed throughout the Commonwealth so that it is convenient for parties to attend court. What if it is not convenient? What if someone lives in another state or another country? Do they have to attend in person? Under the current system the answer is that they must attend in person.

It is permissible in some circumstances for litigants to not appear in person. This is only allowed if a lawyer or a party brings a motion in advance for a hearing to be held without a party attending in person. This motion may present that the lawyer will appear without the client or it may request that a party participate by video conference or by telephone conference. What if a person lives out of state and can't afford to hire a lawyer and can't afford to travel to Massachusetts? There is no procedure for a person to participate in this circumstance.

I suggest that the Courts change the rules to allow virtual hearings to accommodate out of state parties. With today's technology, parties can fax documents to the court and appear virtually through the internet. We no longer need expensive equipment. Smart phones, tablet and laptop computers all have cameras that allow teleconferencing. Software to conduct video conferencing such as Skype and Facetime are free. With a minimal amount of effort, parties can appear long distance without spending a fortune to travel to Massachusetts. In fact, Probate Courts have held virtual hearings for years when a party is incarcerated in a Massachusetts prison.

What I think is necessary is a court rule that allows virtual appearances. It can be limited to specific types of hearings such as temporary orders. The rule should allow a party to mail or fax a request to attend the hearing by video. The rule can require that financial statements and related documents be faxed or mailed to the court with copies faxed or mailed to the other side in advance. The court can schedule a virtual hearing at a set time. This would require that parties can mail or fax the request and that the Clerk's office would process the request. It would also require a change in the wording of the summons to notify parties of the right to seek a virtual hearing.

Until such time as the courts change the way they treat out of state parties, any out of state person who is sued in Massachusetts Probate and Family Court must consult an experienced Massachusettsfamily law attorney for help.