Parental alienation can cause a change in custody.

Some people are not satisfied to get divorced. They want to inflict pain on their ex-spouse. When the couple have children, the children afford an easy method of hurting the other parent. Some parents use the children as weapons for the sole purpose of causing emotional pain to the other parent. They interfere with visitation and attempt to alienate the children from the other parent. Not only is this harmful to the other parent, it is also harmful to the children. In a recent case of Barrington v. Barrington, the Court changed custody from mother to father due to parental alienation.

The focus should be on the best interests of the children. Parents should try to get along for the benefit of the children. Divorce lawyers should guide their clients to avoid this type of harmful behavior.

Communication with your ex-spouse. Use Email.

If a couple have children, their relationship doesn't end when they get divorced. They will continue to interact for the rest of their combined lives. The worst way to communicate is in front of the children. Parents who communicate in person tend to do so when they exchange the children for visitation. The children are exposed to every argument and every angry word. Children pick up on these and are likely to have adverse reactions. Even if the children don't show a reaction, they are likely to suffer emotionally.   If the parents communicate by telephone, children are likely to hear one side of the conversations. It is better to keep the communications entirely private from the children. E-mail does this.

Email offers many advantages to other forms of communication. E-mail is private. It allows a greater ability to think before responding. A person who is prone to spontaneous statements can reflect before writing a response. Email can be printed and produced in court. This provides a protection against a party who is unreasonable when negotiating but denies it in court. The ability to produce Emails in court also provides a protection against swearing and threats. With E-mails, the parties can discuss the children without exposing the children to the conversations and still make the necessary arrangements.

If the parties improve their communications, they are likely to avoid problems that will cause them to return to court.

After divorce don't allow children to become master manipulators

As a general rule, parents, after divorce, don't communicate well with each other. If they could communicate well, they probably wouldn't have gotten divorced. This lack of communication creates a vacuum. Just as nature abhors a vacuum, so do children. Unless the parents act to avoid problems, children will fill the vacuum with manipulations.

A typical manipulation could occur around bed time. While the couple was together, the child's bed time was 8:30 P.M. One night, at Dad's house the child may ask “Why do I have to go to bed at 8:30 when Mom lets me stay up until 9?” Of course, Mom doesn't but Dad doesn't know that. Dad feels that he has to compete with Mom for the child's affections and says that the child can now go to bed at 9:00. The child then tries the same thing with Mom with similar success.

Of course, the answer is parents should communicate with each other and avoid competing for affections. A simple response to a child could be “I'll check with your mother and decide after we talk.” The child, knowing that the lie is about to exposed may simply fall back on “Never mind.” Of course, the best way to handle this is for parents to agree to check with each other on all such matters.

Another way of handling this is to explain to the child that there are two households with two sets of rules. So when the child explains that in Mom's house the child has a TV in the bedroom and can watch it until the child falls asleep, a good response is that there are two sets of rules. In Dad's house, there won't be a TV in the bedroom.

Security Deposit Law—Landlords Beware!

     Recently, Judge Young of the U.S. District Court for the District of Massachusetts, wrote an opinion interpreting the Massachusetts Security Deposit law, G.L. c. 186, § 15B. In the case of Hermida v. Archstone, (Civil Action No. 10-12083-WGY) the court addressed an issue under the portion of the law that states that a landlord cannot require a tenant to pay any money at the inception of a tenancy except (i) rent for the first full month of occupancy; (ii) rent for the last full month of occupancy calculated at the same rate as the first month; (iii) a security deposit equal to the first month's rent; and (iv) the purchase and installation cost for a key and lock. The landlord in this case collected an “amenity use fee.” An amenity use fee was for use of a pool, gym, and outdoor grill. The landlord claimed the fee was optional and the tenant claimed that they were never told that the fee was not required. The court found that the landlord violated the statute by imposing this fee.

     The court found that the amenity use fee did not fit within any of the categories of fees allowed by this statute. As such, the landlord violated the statute. Although the court opinion did not address damages, the statute does. Violation of the statute mandates treble damages and attorney fees. The award of attorney fees can far exceed the treble damages imposed. A wise landlord will make certain that there is no violation of the statute.
     The landlord in this case could have collected this fee and not violate the statute. The landlord could have advertised that as a tenant, the tenant could join the “club” which allowed use of the amenities. The landlord should have made it clear that the club was optional. When the tenant moved into the property, the landlord could have given him an application to join the club and an explanation of the fee. The tenant would then have a choice and, if he choice to join, would have paid the fee after he moved into the property. As long as the fee is collected after the tenant moves in and is optional, it shouldn't be a violation.
      I have long argued that many landlords violate this statute in the way they rent apartments. In Boston and other areas, it is very difficult to locate a rental unit unless a person uses a realtor. Realtors typically collect their fee when the tenant rents a unit. Their fee is protected by a listing agreement with the landlord which requires the tenant to pay this fee as a condition of renting the unit. In my opinion, this violates the security deposit fee just as the amenities fee paid by Hermida violated the law. It is not a violation for a tenant to pay a fee to a realtor for the right to look at the realtor's listings. It is only a violation when the landlord requires the tenant to pay the fee. If the landlord has to pay the fee, the landord should amortize the cost of the fee over a twelve month period and raise the rent.

Can a landlord charge for water and sewer?

In Massachusetts, in order for the landlord to charge for water and sewer, there are a number of specific steps that have to be taken. There has to be water conserving fixtures installed and the water has to be separately metered. A plumber has to certify as to the installation of water conserving fixtures. A document has to filed  with and approved by the board of heath concerning the water conservation fixtures. These steps have to be taken before the issue of changing the lease can be reached. If a landlord has not complied with these steps a tenant should be able to call the Board of Health who should notify the landlord that he can't charge for water and sewer charges.

This can be a complicated area of law and a landlord should consult and experienced real estate attorney to comply with the law.

Halloween Laws

Every now and then, it is fun to look at ordinary events in our lives and examine how law interacts with the event.   Halloween is one of those events.

Massachusetts was home to the Salem witchcraft trials. These trials occurred in 1692 in which 19 people were convicted of the crime of witchcraft and were executed by the Colony of Massachusetts. A 20^th person was killed because he would not plead guilty or not guilty to the

crime of witchcraft. These infamous trials have been taken to heart by the Town of Salem and Salem now considers itself the center of universe for Halloween celebrations.

While witchcraft was a crime in 1692 it is no longer a crime in Massachusetts. In 1693 the jails were filled with accused witches waiting for trials. All of the people who had been convicted of witchcraft were convicted on what was called spectral or spectoral evidence. This allowed evidence of spectres or visions to be admitted. People were convicted because someone had an unexplained medical condition. The legislature did not repeal witchcraft as a crime. Instead, the legislature banned the admission of spectral evidence. As a result of this change in procedures not a single person was convicted of witchcraft again. Massachusetts still prohibits the admission of spectral evidence in
court.

Today, Massachusetts doesn't have any specific laws for Halloween. Witchcraft is not mentioned in the General Laws of Massachusetts. However, there are a number of laws that arguably relate to Halloween concepts.

Massachusetts has a Dead man's act. Mass.Gen.L. c. 233, § 65. This isn't as scary as it may sound. This law relates to use of statements of a dead person in a court proceeding. It is part of a rule of evidence known as the hearsay rule.

There are a number of dead body laws. If a person removes or disinters a dead body they can be punished by up to three years in the state prison. Mass.Gen.L. c. 272, § 71. It is illegal to sell a dead body or body parts and is punishable by up to two a half years in jail. Mass.Gen.L. c. 272, § 72. Sheriffs and constables are prohibited from seizing a dead body to collect a debt. If they do, they can be punished by six months in jail. Mass.Gen.L. c. 272, § 70. (How does a sheriff collect a debt by seizing a dead body?)

A number of states have court decisions relating to Halloween icons. A few are described below:

In California witches need to be licensed. In re Zsuzsanna Bartha 63 Cal.App.3d 584, 134 Cal.Rptr 39, 91 A.L.R.3^rd 759 (l976). Meanwhile Massachusetts, home of Salem witchcraft, does not license witches.

In 1991, a New York Court found facts to determine that a house was haunted. Stambovsky v. Ackley, 169 A.D.2d 254 (NY App. Div. 1991). The court reached this conclusion based in part on evidence that was spectral in nature. However, the court based its decision on traditional contract concepts.

In the United States, you can't sue the Devil. Someone actually tried that. In U. S. ex rel. Mayo v. Satan and his Staff, 54 F.R.D. 282 (W.D. Pa. 1971) the court dismissed a lawsuit against Satan because as the principality of his own kingdom, he is beyond the jurisdiction of the courts.

It appears that necrophilia is not a crime in Massachusetts. In the case of  Commonwealth v. Costa, 360 Mass. 177 (1971), there were sufficient facts to prosecute for necrophilia but the Commonwealth didn't prosecute for that. While necrophilia may not be a crime, remember, you can't move the body. It appears that necrophilia doesn't constitute adultry either.  Good thing we have no fault divorce for anybody who discovers that their spouse engages in necrophilia.

While Massachusetts doesn't have laws that specifically deal with Halloween, there are a number of laws that are important on Halloween night.

It wouldn't be Halloween without trick or treating. If tricks involve damage to property, that constitutes the crime of vandalism. Mass.Gen.L. c. 266, §§ 94-107. If the trick involves a john then the “trick” is prostitution and is illegal. Mass.Gen.L. c. 272, §§ 53, 53A.

For many people, Halloween means parties. Parties, at any time of year, have the potential for legal problems. It is a crime to serve alcohol to minors. Mass.Gen.L. c. 138, § 34. If a person drinks too much at a party and then drives and has an accident, the host of the party can be sued for the resulting injuries. This is known as social host liability and exists in Massachusetts. Most towns have ordinances that prohibit parties from making too much noise late at night. Usually police give a warning when they first arrive at the home where a noisy party exits. However, they may have the power to arrest for the offense of making noise late at night.

Halloween celebrating can result in some people drinking and driving. Massachusetts prohibits operating a motor vehicle under the influence of alcohol. Mass.Gen.L. c. 90, § 24.

Halloween should be a time for fun.  Have a happy Halloween and make sure you don't move any dead bodies, do any illegal tricks, or party too hard.  If you do any of these things, you may have to hire a lawyer which could be scarier than any costumed person who shows up at your door.

Bribe your ex-spouse.

After divorce, parties frequently feel the need to change the terms of the separation agreement or divorce judgment. The easiest way to change the divorce terms is to enter into an agreement with your ex-spouse. Unfortunately, the ex may not agree even though you are asking for changes that are logical and reasonable. It appears that your only option is to hire a lawyer and file a modification action. This is a long and expensive process. There is another option:  Bribe your ex-spouse.

In many cases, the other spouse may cooperate if they receive money or other consideration for the agreement. An example of this is moving the child out of state. If the ex-spouse refuses to give permission to take the child, consider offering other considerations. I suggest that the child support payments be lowered to compensate for the added cost of traveling out of state to visit. In addition, the visitation schedule should be changed to give the other parent longer visits. Perhaps giving the other parent Christmas vacation every year would obtain their cooperation. In addition, the parties could agree on regular “Skype” visits over the internet. Offers of this nature may result in cooperation to move out of state and improve the relationship between the two parents.

After you and your ex-spouse have agreed, you can file a simplified form to have the court approve your agreement.

The 4 “A”s that cause divorce.

There can be many reasons for couples to get divorced. However, four behaviors stand out as causing divorce: Abuse, Addiction, Adultery, and Abstention.

Physical abuse constitutes the crime of assault and battery. This behavior can be highly destructive. While many people stay in an abusive relationship for a period of time, most people who are victims of abuse separate and get divorced.

Addiction to drugs or alcohol also can be extremely destructive. Addiction can lead to abuse, loss of job, wasting of money, and other harmful conduct.  Frequently, addicts resist attempts to help them fight the addiction.

The concept of marriage incorporates a pledge of exclusive sexual access for the spouses. Adultery represents a violation of this pledge and many people view this as so important that any act of adultery will cause a divorce. Since few people commit adultery in sight of their spouse, the appearance of adultery can be as harmful as adultery itself. If people want to protect their marriage, they should avoid behavior that causes their spouse to think that adultery is occurring

Abstention is the absence of sexual relations. For most couples, sex is important to maintain intimacy and harmony. If they stop having regular sexual relations, it can be as destructive to the relationship as any other behavior. Frequently, abstention will result in one party seeking sex outside the marriage. Couples should have regular sex to make the marriage last.

The Alimony Reform Act of 2011

The alimony reform act of 2011 was signed into law last week. This law reforms the law of alimony with the stated purpose of eliminating life long alimony. The law changes alimony in many other ways such as creating new types of alimony, allowing new factors to be considered in creating alimony, and implementing some formulas for calculating alimony. The law becomes effective on March 1, 2012 but will start effecting divorces immediately. Most lawyers who represent potential payors of alimony won't discuss alimony in agreements unless it is based on the new law. Furthermore, the new law allows some alimony agreements to be modified after the effective date so failing to consider the new law could be a disservice to the client.

Who should have a premarital agreement?

The simple answer is anybody who comes to the marriage with something to protect when the marriage terminates should have a premarital agreement when they get married. The general categories of people who can benefit are people with children from a prior relationship, significant family assets, or people who own a business which comprises a major source of income.

If there are children from a prior relationship, they may not inherit when their parent dies without a premarital agreement. The laws of inheritance give preference to a surviving spouse. Even if a will exists, the law still gives preference to a spouse. The best way to make sure that children can inherit is to write a prenuptial agreement. When one spouse owns a business or a portion of the business in which they receive significant income, it may be desirable to make certain that the new spouse can't receive a portion of the business in a divorce. It can be devastating to the business to have a person own a business when they are not qualified to run the business. It can also be very difficult for one spouse to suddenly work for an ex-spouse.

Another group of people who should have a premarital agreement are people who are religious and whose religion offers a religious termination of a marriage.  Catholics, Muslims, and Jews can all obtain a religious decision that a marriage is terminated or never existed.  Some people will want both a secular divorce and a religious divorce or annulment.  Anyone in this group can benefit from a premarital agreement because an agreement can make a religious termination occur without a fight and at minimal cost.

Premarital agreements can successfully protect against these problems and others.  Consulting an experienced family law attorney before getting married can eliminate problems and fighting when the marriage terminates.

What is a pre-nuptial agreement?

A pre-nuptial agreement is an agreement between a couple who intend to get married which determines financial obligations upon termination of the marriage. All marriages terminate either by divorce or by death. A pre-nuptial agreement should determine rights and obligations for both methods of termination. A pre-nuptial agreement must be fair at the time of creation and fair at the time of enforcement. Fairness at the time of creation means that both parties must make a full and fair disclosure of their income, assets, expenses, and liabilities. Fairness at the time of enforcement requires a fair distribution of income and assets at the time of termination. This doesn't mean an equal distribution but one party can't be left destitute. As parties can't contract away children's rights, a pre-nuptial agreement can't determine child custody or support issues.

An experienced family law attorney can help avoid problems upon termination of the marriage.

Tenants' rights after foreclosure

In the recent case of Bank of New York v. Bailey, 460 Mass. 327, (SJC-10801, August 4, 2011) the court ruled that a tenant has the right to challenge the title of a owner who obtained their title to the property from a foreclosure.

While this is considered by some as a landmark ruling, it shouldn't be a surprise to lawyers who are familiar with landlord tenant law. In order to evict a tenant, the plaintiff must claim that they have a superior title to the tenant. In order to have a superior title, the plaintiff must have a valid ownership interest. In the Bailey case, the plaintiff claimed that a foreclosure deed, on its face, established their superior title and that the tenant couldn't contest this. If a deed by itself is sufficient to establish title, what stops a person from forging a deed and then trying to extort money from a tenant by starting an eviction case? I believe that it is unconstitutional to evict a person without allowing them the opportunity to challenge a forged deed. Yet the Bank of New York argued that their foreclosure deed was above challenge. The court decision does not go into great detail on BNY's arguments. However, it it possible that BNY argued that tenants generally can't contest the landlord's claim of title. This is correct but with different facts. If a person, claiming to own the property, gives a tenant keys and allows them to enter the property, the tenant can't claim that person is not the owner of the property. This doctrine of title by estoppel is based on the concept that a tenant who takes advantage of a claim of title by taking possession can't then challenge the very same claim of title. In the Bailey case, the tenant did not take possession of the property from BNY. They took title from someone else and BNY claimed that they took the title away by a foreclosure. There is no estoppel in this situation. The argument by BNY ignores another concept in eviction law. A summary process action (eviction) is an action to take away a property interest. This is called a forfeiture action. Forfeiture actions are abhorred by the law and require strict compliance with all formalities. This strict compliance with all formalities is also present in foreclosure actions for the same reason. The only way a court can discover if a foreclosure strictly complied with all formalities is by holding a trial. 

The decision of the Supreme Judicial Court complied with existing law.

Contempts and the right to counsel

In the case of Turner v. Rogers, U.S Sup.Ct. No 10-10 June 30, 2011, the Supreme Court addressed the question of is a court appointed attorney required in civil contempt proceedings for the collection of child support. The simple answer is sometimes yes and sometimes no. Probably, most of the time, court appointed counsel will not be required. It is my opinion that under present Massachusetts practice, court appointed counsel must be appointed. If Massachusetts makes some minor changes, counsel won't be required in the majority of cases.

The decision of the court makes it clear that incarceration as a result of a contempt finding is just as harmful as incarceration in a criminal case. Before jail can be imposed for non-payment of child support, the court must either appoint an attorney to represent the defendant or provide “substitute procedural safeguards.” Substitute procedural safeguards include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information from him; (3) an opportunity at the hearing for him to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay. Massachusetts practice includes the last three of these safeguards. What is lacking is the notice to the defendant that his ability to pay is a critical issue.

Notice of a complaint for contempt is provided by service of a summons and a complaint. The current form of a summons does not have any language that provides notice that ability to pay is a critical issue. As long as Massachusetts lacks this essential notice, it appears that Massachusetts will have to appoint attorneys to represent defendants in contempt cases. It should be a simple and inexpensive remedy for the state to revise the form of summons and include the language that is now constitutionally required. Until this is done, the language can be added to complaints or court appointed attorneys must be provided.

While the Supreme Court decision does not go further, I think that the decision requires more than notice and filling out a financial statement. It appears to require that the Defendant have the ability to understand the issue of ability to pay and to present testimony on this issue to the court. If the defendant lacks this ability, then the court needs to appoint counsel.