All posts by Nicole Lavallee

Do I have to Pay Rent?

Navigating Massachusetts Housing Courts During the Pandemic

April 21, 2020 UPDATE:

The Massachusetts legislature has passed an eviction and foreclosure moratorium.

The moratorium will freeze non-emergency eviction and foreclosure proceedings until either one hundred twenty (120) days after April 20, 2020 or until forty five (45) days after the state of emergency declaration has been lifted, whichever is sooner.

Tenants are required to notify landlords in writing if their late rent payment(s) are due to COVID-19 related inability to pay. This is defined as both directly and indirectly related and seems to include layoffs as well as sick leaves directly related to COVID-19. This notification will only forgive late fees and penalties, not the base rent as a whole.

Once the restrictions are lifted, a tenant is required to pay their base rent in full or may face eviction proceedings.

Homeowners are also given slight relief.  They, too, are able to request relief from banks on late fees and interest above and beyond their regular obligatory payments, as well as a one-hundred-and-eighty-day forbearance. The homeowner will be responsible for these payments, which will be added to the end of the mortgage term. Banks are prohibited from beginning foreclosure proceedings during this time. This adds a protection for homeowners not otherwise available in the federal CARES act for any homeowner with a mortgage through a non-federal source.

One other provision worthy of note, landlords are now allowed to use a tenant’s last month rent for expenses related to the property. Landlords are not able to use tenant’s pre-payment of last month’s rent for the tenant’s past due rent during the state of emergency, but are allowed to utilize such payments for ongoing operating expenses, utilities or repairs. 

It is of worthy note to explain the difference between a moratorium/freeze and forgiveness. At the end of the state of emergency, both homeowners and tenants will be responsible for all of the back payments incurred. Please make sure you plan accordingly for the safety and security of your family.

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(Please note that the Housing Court situation is fluid, and we will be updating our website as new information becomes available. This information is up to date as of April 20, 2020.)

Tenants have many questions about their rights and housing during the pandemic. Guidelines, proposals, and standing orders have been dominating the news cycle with little guidance for what is implemented, what is not, and what may be in the legislative pipeline. At times, the words are used interchangeably, and we see article headlines that bring more questions than answers.

We want to ensure tenants are informed and that expectations are set for what is currently in place, and not what we may want to see on any individual level.

What’s up With the Federal Moratorium?

What protection is afforded through the CARES Act?

The CARES Act will protect a tenant from eviction due to nonpayment and/or “no cause” eviction for 120 days from enactment (March 27, 2020) if they have housing through any of the following programs:

Department of Housing and Urban Development (HUD)

  • Public housing (42 USC § 1437d)
  • Section 8 Housing Choice Voucher program (42 USC § 1437f)
  • Section 8 project-based housing (42 USC § 1437f)
  • Section 202 housing for the elderly (12 USC § 1701q)3
  • Section 811 housing for people with disabilities (42 USC § 8013)
  • Section 236 multifamily rental housing (12 USC § 1715z–1)
  • Section 221(d)(3) Below Market Interest Rate (BMIR) housing (12 USC § 17151(d))
  • HOME (42 USC § 12741 et seq.)
  • Housing Opportunities for Persons with AIDS (HOPWA) (42 USC § 12901, et seq.)
  • McKinney-Vento Act homelessness programs (42 USC § 11360, et seq.) 4

Department of Agriculture

  • Section 515 Rural Rental Housing (42 USC § 1485)
  • Sections 514 and 516 Farm Labor Housing (42 USC §§ 1484, 1486)
  • Section 533 Housing Preservation Grants (42 USC § 1490m)
  • Section 538 multifamily rental housing (42 USC § 1490p-2)

Department of Treasury

  • Low-Income Housing Tax Credit (LIHTC) (26 USC § 42)

This moratorium also applies to tenants whose landlords have federally backed loans on their rental properties. This is not easily researched information, but information that you or your attorney can request during discovery.

(See more: https://www.nhlp.org/wp-content/uploads/2020.03.27-NHLP-CARES-Act-Eviction-Moratorium-Summary.pdf)

What’s up With the State Moratorium? 

At this time, no rent moratorium has been called or issued at the state level for the Commonwealth of Massachusetts. A bill introduced by the State’s House of Representatives that includes a moratorium was passed in the House; however, it has not passed the State Senate. Similar measures have been introduced at the city/municipality level; yet, none have passed as of the writing of this blog, and none of these measures seem to be imminent in passing.

Do not put all of your eggs into the rent moratorium basket. 

As helpful as a moratorium would be for the average tenant, and especially by those adversely affected by COVID-19, it merely is not a guarantee.

Many tenants mistake a moratorium for rent forgiveness. IT IS NOT. You still must pay your rent. A moratorium only stops late fees from accruing and delays eviction action. It does not forgive the rent payments due. Tenants will still have to pay their arrears under the law when the courts reopen for business.

We understand that currently, with all that is going on, many are struggling. Entire industries have disappeared overnight. This is not meant to be dismissive of personal economic circumstance, but instead to set realistic expectations with the most current information we have to date. Please see additional resources listed in our previous blogs for help if you are struggling financially.

But the Courts are Closed! 

The Massachusetts Housing Courts are currently closed for in-person business. They are hearing emergency motions and will be accepting electronic filings for some instances to be heard telephonically when available. Current cases have been continued beyond May 4, 2020, with dates to issue on a case by case basis. Attorneys and Pro-Se litigants will, at this time, be permitted to file beginning May 4, 2020. These hearings will be likely telephonic in nature but carry the same weight as an in-person hearing.

The Housing Courts will also be looking for greater collaboration between the parties. This means the court wanted the parties to enter into a reasonable payment plan for any arrears owed before the hearing. We understand that not all tenants and not all landlords were created equal. Reaching settlement will not look the same in every case and will not be an option in every case.

My Landlord Can’t Serve Me with a Notice to Quit, Right?

Currently process servers are serving Notices to Quit on tenants. The only moratoriums that are now in force are listed above. Those moratoriums only apply to nonpayment of rent and no-cause evictions and extend 120 days from March 27, 2020. There is nothing currently in place for many tenants to prohibit landlords from serving these Notices to Quit. Ones served on an emergency basis will likely still be held as valid in Housing Court, if the case progresses to that level.

Guidelines vs. Orders

The Massachusetts Department of Housing and Community Development has enacted a list of guidelines to landlords and property owners. From their website:

  • A new $5 million special fund under the RAFT (Residential Assistance for Families in Transition) program for eligible households (families and individuals) who may face eviction, foreclosure, loss of utilities, and other housing emergencies. Full details on this under the RAFT tab below.
  • Guidance to all state-aided public housing operators, including Local Housing Authorities and private operators, to suspend both pending non-essential evictions and the filing of any new non-essential evictions.
  • Guidance urging operators of private, affordable housing to suspend non-essential evictions for loss of income or employment circumstances that result in a tenant’s inability to make rent. This guidance also urges operators to establish reasonable payment plans, to notify Section 8 or public housing residents about interim income recertification to adjust rent payments, and to consider offering relief funding for residents ineligible for income reassessment.
  • DHCD is moving to temporarily suspend terminations of federal and state rental vouchers, including assistance provided under the Section 8 (DHCD portfolio only), Massachusetts Rental Voucher and Alternative Housing Voucher programs, in all cases other than those involving violent or drug-related criminal activity that seriously affects the health and safety of other residents.
  • DHCD will also automatically extend the deadline by which a household issued a voucher must identify a housing unit where they can use the voucher. The 60-day voucher would be extended automatically until 30 calendar days past the expiration of the state of emergency.
  • The Division of Banks has also released additional guidance for homeowners and financial institutions regarding foreclosure during the state of emergency. You can find more information on their website: https://www.mass.gov/orgs/division-of-banks

The guidelines help outline what behaviors should look like during this time of crisis. They do not necessarily order such behavior.

The current standing orders are:

https://www.mass.gov/housing-court-rules/housing-court-standing-order-4-20-supplement-to-housing-court-standing-orders-2

https://www.mass.gov/housing-court-rules/housing-court-standing-order-3-20-supplement-to-housing-court-standing-order-2

https://www.mass.gov/housing-court-rules/housing-court-standing-order-2-20-temporary-modifications-to-court-operations

Please note that even the bills moving through the Massachusetts legislature only, at best, delay eviction proceedings. They are also only related to income loss due to COVID-19. If there are criminal complaints and/or emergency matters, a landlord can take a tenant into court on an emergency basis even now.

Know your rights and stay informed as we navigate this crisis together. If you have any case-specific tenant or landlord questions, please call us today to book a free, remote 30-minute consultation (508) 425-6945.

5 Tricks to Finding More Affordable Legal Representation: Probate & Family Court

The Probate & Family Court is an intimidating place. One day recently, I stood in line at the security check and saw a young woman put her infant, complete with carrier, up on the conveyor belt to be X-Rayed. The security guard luckily intervened, “um, ma’am, your baby?” 

I imagine she was nervous, so as I watched, hoping that baby wouldn’t take a trip through the conveyor belt, I also related to this young mother. Her anxiousness and fear were palpable, and adding the stress of court I addition to new parenthood, or a divorce, or death of a loved one while you’re left to navigate the legal process alone is overwhelming to most. 

In criminal court, when you cannot afford an attorney, you are appointed one, but this is not the case in the Family & Probate Court. When your kids, your life savings, your house, and sometimes even your freedom are at stake, what are some options for a person who cannot merely withdraw many thousands of dollars from their savings account? 

LAR Attorney Services

LAR is an abbreviation for “Limited Assistance Representation.”

Say you go to a fast-food restaurant. You could buy a value meal, but what if you’re not thirsty and don’t want to pay the full price with a drink? Sure, it may be cheaper for someone who is thirsty, but maybe that isn’t the best option for you. 

The same theory applies with LAR Services. I often explain it to our potential clients as “a la carte” legal services. The up-front cost is much lower, and clients can manage their cases based on their comfort levels and ability to pay.  

These levels of service range from consulting and advice only, to ghost-writing documents such as motions, legal memorandums, discovery, agreement, etc., and may also extend to court appearances. LAR Attorney Services in Massachusetts allow an attorney to appear and withdraw in the same day court appearance. This will enable clients to pick and choose which court appearances they want their attorney to appear. For clients who are comfortable stating their case in front of the judge, this can be a great and lower-cost option. 

Affidavit of Indigency

The Affidavit of Indigency can be filled out and submitted to the courts by low-income individuals. This Affidavit does not help a person retain legal services; however, it does waive expensive filing fees for qualifying individuals. Please check out the following link for eligibility requirements and application: https://www.mass.gov/lists/court-forms-for-indigency

Reduced Fee Program

If you believe you may qualify for a reduced fee because of your economic situation, the Reduced Fee Panel is another way to save on overall legal fees. The panel links individuals with an attorney that has volunteered to take a certain number of cases on a reduced fee schedule.  

Individuals will call those attorneys and schedule a consultation, and will generally have much lower retainers because the hourly fees are less than a practicing attorney’s full rate. If you think you may qualify, please fill out the application at the following link: https://www.worcestercountybar.org/lawyer-referral-service/

Lawyer for the Day Program

Need help getting started? The Worcester Probate & Family Court provides a “lawyer for the day program.” It is a program co-sponsored by Community Legal Aid and the Worcester County Bar Association. The program offers individuals help in filling out Complaints and Motions. 

The program primarily helps with navigating paperwork. They do not provide case-specific advice; however, they will walk you through the meaning of each section of the paperwork. For those who cannot afford representation by counsel, it can serve as an alternate option. 

Court Service Center

In the Worcester Court, this is located by making a U-turn to the right after you pass security. The program primarily helps with navigating paperwork. They volunteer, and not all volunteers are attorneys. They do not provide case-specific advice; however, they will walk you through the meaning of each section of the paperwork. For those who cannot afford representation by counsel, it can serve as an alternate option. 

Help for Victims of Crime

The Civil Legal Aid for Victims of Crime (CLAVC) aids those who are victims of crime in their civil proceedings that are related to that crime. The requirements are as follows: 

  1. You must be a victim or a survivor of a crime;
  2. You must have a civil (non-criminal) legal problem that is a result of that crime; and
  3. You must live in Massachusetts, or the legal issue must be in Massachusetts.

If you think this may be an option for you, please visit https://massclavc.org/find-legal-help/ for details regarding the application process. 

Conclusion

If you have been calling attorney’s offices looking for pro-bono help and are frustrated, we understand. Most attorneys volunteer many hours of their time for pro-bono and reduced-fee programs. However, most do so through the existing programs. In order to provide this pro bono and reduced fee legal help to the community, these small businesses must also bring in enough revenue to keep the rent paid and the doors open. 

If you have any questions at all, please give us a call. Also, please feel free to download Attorney Lavallee’s free e-book, “Divorce is not an Evil Word.” In it, she shares a lot of her experiences and knowledge from her 18 years of practicing law in Worcester County. 

Setting expectations in the divorce process

“I Didn’t Know He Was Going to Be Such A D*ck”

In this life, we can group everything into one of two categories: “controllable” and “uncontrollable.”  Within the former are our actions, within the latter the actions of those around us.  Most of our clients that come to us seeking a divorce has AT LEAST one quality of their soon-to-be-former spouse that they dislike.  To possess the belief that they will suddenly change their ways and become an upstanding member of society and a model citizen through the proceedings is, at times, inaccurate.

A whole generation spent snow days and sick days watching crappy daytime TV. The general expectation is “if my spouse lies in court, Judge Judy is going to come from behind the curtain and lock them up!” Unfortunately, in real life, this does not happen.  There are processes and procedures to address inappropriate and/or illegal behavior.  These processes can take time, and potentially money.  But that is why we are here.  

So, let’s talk about a few things we can control. 

DISCOVERY

We need to get to the bottom of finding your marital assets.  Sometimes spouses tend to be sneaky in the months and years preceding a divorce and like to hide assets.  A great attorney will be able to forensically analyze your statements and uncover spending patterns and true income numbers.  

One of the attorneys at Reeves Lavallee, PC recently settled a case with such hidden assets.  The initial offer from the other party was $13,000.00.  After months of discovery and uncovering assets, the final settlement was more than twenty times that initial offer.  Discovery matters. 

When we receive discovery requests from the other party, we must also comply in a timely fashion.  These requests are generally due within 30 days.  We must follow the rules laid out by the Massachusetts Domestic Relations Procedure.  This includes telephone contact to negotiate timelines and a lot of tracking on our end.  We cannot move forward to compel discovery until our clients are also in compliance.  The sooner you produce your discovery responses, the better. 

RECORD KEEPING

Document Everything.  

We get phone calls every day from clients about their cases with updates.  We document everything for our clients and track important dates.  However, we are better able to serve our clients when they are diligent with this tracking.  Our clients save money and time by keeping a concise journal of updates.  The attorney’s pretrial memo is more effective at conveying your narrative if it reads “Parent X was late to pick up on these dates: _______” rather than “Parent X is often late to pickups.”

GET IT IN WRITING

Try to keep your communications limited to texts and emails.  This will help you hold the other party accountable for their responsibilities.  Texts and emails also help to paint the picture for the judge.  Verbal communication can be disputed, texts and emails cannot easily if at all, be disputed.  

FINANCIAL STATEMENT

Do not take this lightly.  You will need to update your financial statement every time you go into court.  The financial statement is a snapshot in time of your current income, assets, and expenses.  The judge relies heavily on this document to determine any support awards and division of assets and liabilities.  Take your time and ensure accuracy in filling these out.  Start them well ahead of your court date, so that you are prepared. This often-overlooked document has the potential to cost you a lot of money if not filled out properly.

CONCLUSION

Filing for Divorce is an extremely emotional and oftentimes traumatic event, and no two situations are exactly the same.  We are here at Reeves Lavallee, PC to help guide you through your specific set of circumstances.  Please give us a call at (508) 425-6945 to set up a consultation today. 

Coronavirus and how it affects parenting time

Everyone is hyper diligent about protecting their family and their children. So when it comes to the Coronavirus, what can a parent do?
For an intact family where both parents live in the same home, your job is to make sure you have “quality time” while still social distancing.

But what about parents that do not live together, whether it because of a divorce or they were never married and/or have never lived together?

The most asked question is, “should I permit my child to go with the other parent.”

As an attorney, I will not and cannot advise you to disobey a court order. The Probate & Family Court has specifically made an order that states that court-ordered parenting time is not “stayed.” This means you MUST follow the court orders.

Each parent needs to look out for their child. At this time, that means that each needs to learn how to compromise more and be more flexible given the situation.

Many single parents have vast differences of opinion on how to do things. The most important thing is communication.
The best solution in this situation is to meditate and settle issues rather than dig your heels in and make matters worse once the court reopens.

Some examples to consider when one parent is in health care. While they are doing their best to protect and care for the general population they are, in the process, exposing themselves to patients who have Coronavirus, or if a parent works at a manufacturing plant that their employment is not taking the precaution of social distancing, or a parent who has determined this is all ‘hype’ and goes out to game night or a birthday a party.

Sometimes the decision is easy. For example, if a child were to travel (by plane or train) for Spring break to see their other parent, I would hope that both parents could agree its not safe and to try and schedule a make-up time when the pandemic is over.

However, when parents are just a mile away, or even walking distance now what? Parents could consider larger blocks of time (perhaps a week) with their children rather than a back and forth every other day, assuming both parents are home and have been self-isolating.

Other alternatives are to offer Skype, Facetime, Zoom or other video conferencing programs to the isolated parent who is missing his/her parenting time. Do these frequently and for a longer duration than a quick check-in. This allows for some quality time with their children. Depending on your Internet speed and the time you have booked together, do projects together, such as crafts, baking, games, etc.

Remember that when the pandemic is over, the parent who has not been able to touch their child due to the distance should enjoy some quality make up in-person time.
The goal is for each parent to be creative, reasonable, and flexible and understand that their child is not their possession but a gift to both parents.

If you want to be a parent who says, “I am the custodial parent and I will not allow contact or parenting time,” then once the court opens, the court will hear your position and might not look favorably on your actions. It is a violation of the law. Plus, if you were close to a settlement before the pandemic chances are, all negotiations have been terminated as the other parent thought you were unreasonable. Your action today and your conduct today has consequences for you, the other parent, and the child that can last a lifetime.

If you are a client of mine and need to work out a schedule with the other parent, we are here to negotiate with their counsel or schedule a 3-way zoom meeting. If you are not a client, and each parent is willing to mediate an agreement, we can book a zoom meeting to mediate your issues.

Please reach out to us at Reeves Lavallee PC at 508-425-6945 to book an appointment.

COVID-19 & PANDEMICS

Hello friends,

First and foremost we hope you are well. Things have been uncertain and these changes to our daily lives are unprecedented. The MOST important thing is that you are healthy. Anything else can be fixed.

We want you to know we are open. We will stay open as long as possible to serve our clients and community. Legal problems cannot be quarantined.

However, we are also aware that we all must do our part to slow the spread of illness and protect our staff, our families, and our clients who are elderly or immune-compromised. With that in mind, we are changing the way we conduct business to allow us to still serve clients without missing a beat and keep everyone safe. We are able to meet with any current or potential new clients via telephone or video conferencing. Most court are actively accepting filing and we will get a hearing once the court reopen.  We can conduct discovery (including subpoenas), review contracts, offer advice and conduct real estate transactions.

If you have any questions about contracts, real estate conveyance or other real estate issues, or your family life and how any orders are impacted by Covid-19 please reach out. 


Please give us a call at 508-425-6945 to book an appointment or email all questions or concerns to our clients-only email address [email protected]. I believe demand for our services will increase sharply in the coming months, and we want to make sure our current clients are given the attention they need and deserve right now.

We are here to help you through this tough time and the unknown changes that lay ahead. We are thinking of you and wish you all the best.

Thank you!

Nicole Reeves Lavallee, Esq

Prenuptial Agreements and Social Media Prenuptials

In order for a Prenuptial Agreement to be valid there are factors that court must consider both at the time of the signing prior to marriage and also at the time of the pending divorce.

Prior to signing the agreement, the court will consider many factors, such as: the terms in the agreement; whether it was negotiated by counsel, or with the assistance of counsel; if the agreement is fair and reasonable and was entered into freely, knowingly and voluntarily; whether any and all of the assets and liabilities were included andif they allocated within the contract; and the date that the agreement was signed in relationship to your upcoming wedding.

At the time of the divorce the court will determine whether the terms of the agreement are fair and reasonable at the current time and what assets are included, or excluded, within the PrenuptialAgreement itself. The court has authority to void certain provisions but generally they will either hold the Prenuptial Agreement valid or invalid.

The benefit of any Prenuptial Agreement is to minimize the issues if and when a divorce is necessary. The agreement should include a determination as to the division, retention or distribution for the following: all assets that were owned prior to the marriage; all assets individually acquired after the marriage; all joint assets acquired after the marriage; all assets inherited after the marriage; and how one spouse can leave assets to their heirs rather than their spouse.

Currently the latest trend included in a Prenuptial is language about conduct, limitations and restrictions of social media as a way to prevent revenge porn. This can be a separate contract or within the Prenuptial Agreement. I would suggest a separate contract so that in the event of a breach you can choose the court most convenient and effective based on your particular facts.

A Social Media Prenuptial includes language about what the parties will do with photographs, videos and other such media, taken during the relationship and also what can be disclosed to others, on media such as Facebook, Twitter, Instagram, Snapchat or other social media sites.

Social Media prenuptial deals with actions of a party after the relationship has ended. Once there is a breach the consequences are potentially forever. A post, a picture, a rant on the Internet, even if they are later delated, is still there. Treat anything you post online as public and forever, even if you believe you are in a protected private conversation. This revenge can cause problems with their employment, family, and friends.

Social Media Prenuptial can give you a sense of security during a marriage or relationship, but just realize these may be a false feeling. The consequences of a breach is financial sanctions for every breach. Depending on the damage amount in the contract a person may opt to still breach it and pay the consequence just to get their revenge.

In my opinion a binding Prenuptial and/or Social Media Prenuptial contract is still better then not having it as it at least makes the other party think before acting and hopefully the contract will prevail, especially if the punitive damages assigned are high enough.

Think before you act.

Mother and father arguing in front of Christmas tree, children sitting in the corner

As the holiday season approaches please realize that your children did not ask to have families that live separate and apart. It is important to follow the court order, if you and your ex cannot agree otherwise. Ignoring the terms of a court order can be detrimental for the entire family.

When one parent decides to unilaterally change the terms of a court order, the child is often put in the middle of the situation, which usually escalates to a battle. Often the children are aware they are supposed to be going with the other parent and are disappointed, and sometimes think, they are being stood-up (creating hostility).

Boy with teddy bear and parents fighting

The parent who does not receive his/her parenting time often has plans that either needs to be changed or cancelled altogether. If they decide to continue with the plans (without their children) than very often every family member comments about the non-complying ex and their evil behaviors. These comments are often heard by the children at future family functions. The children become sad or angry with their family and/or either parent.

Whether the court order was decided either by an agreement of the parties or by a judge, someone decided that the schedule was in the best interest of your children. To simply disrupt the schedule because you decided is not in the best interest of the children.

While we all understand that the holidays are meaningful and important and you want your children with you, it cannot always be that way growing up in separate homes. That is just something you have to accept as a parent and try to consider the other parent and most importantly your children.

Assuming a parent breaches the court order then the party who lost the parenting time may seek a complaint for contempt. In that contempt action the non-complying party may be responsible to 1) provide additional parenting time, 2) loose parenting time at the next scheduled holiday, 3) be responsible for other parent attorney’s fees and costs, 4) loose custody of the children, and/or 5) be sentenced to the house of corrections.