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.