All posts by Nicole Lavallee

Attorney Nicole Reeves Lavallee is an experienced Worcester County lawyer skilled in various areas of law, such as domestic relations, probate, estate planning, civil litigation, collections, and real estate transfers. Focusing on domestic relations, probate, and real estate, she’s dedicated to helping clients reach realistic outcomes in mediation, adoption, custody disputes, and beyond. Attorney Lavallee is also proficient in assisting physically impaired clients, especially the deaf. Before founding Reeves Lavallee PC, she was a partner at Reeves, Huntoon & Montminy, P.C. and a general practitioner at a Worcester law firm. Read some of her reviews.

Honesty

I cannot stress enough the need to be completely truthful with your attorney in all cases (except maybe criminal). They should not judge you but they need to know all the facts, good and bad, prior to going to court.

All too often clients want to be selective on which is facts are disclosed. At the end of the day it only makes your attorneys job even harder. If there are skeletons in your closet and your attorney knew what they were then they can come up with a game plans as to how to minimize the effects of those skeletons, or even eliminate them all together.

If on the other hand, you do not disclose those skeletons then often your ex knows, tells their attorney and now it is being used against you. Since you did not disclose it to your attorney the attorney if often scrambling as the judge inquires, tries to deflect the questions, or, worse yet, just looks at you unable to answer.

The most often types of skeletons that come up in family law pertain to the following:

  • DCF involvement (past or present)
  • Criminal history
  • Use of drugs (including marijuana)
  • Abuse of alcohol
  • Domestic violence on any partner (past or present)
  • Restraining orders sought or obtained (past and present)
  • Written agreement between the parties (whether a court order or not)
  • Emails or text messages between the parties
  • Custody and parenting schedule for other children not subject to this case

This is only a partial list. In any civil cases or housing court cases the list above may be applicable, in addition to housing code violations, section 8, leases (written or otherwise), agreed upon reimbursements.

Provide your attorney will all the knowledge they need to best advise you and to defend your actions. Realistically this should be done in the initial consultation, or once the issues arise after the attorney has been retained.

Mediation

Most people who are going through, or believe they will be going through, the legal process believe it must be adversarial. It does not. There is a simpler and cost effective way to resolve your dispute. Why not give mediation a try? You really have nothing to lose.

There are many attorneys who are opposed to mediation. I am not exactly sure why but I suspect it might have to do with the fact that attorneys are trained to be more adversarial rather than to negotiate. However, most cases that go through the legal system settle. Only a small portion of cases goes to trial, as it should be in the family, housing and civil cases.

In Probate and Family court most cases are required to do some form of settlement negotiations. In Housing court, you are required to go to mediation. In Small Claims court, everyone is encouraged to select mediation as a viable option before your case is heard by a decision maker (judge or clerk magistrate). In District court and Superior court (civil cases) you can request mediation to attempt to settle your case.

There are government funded programs where you can go to mediate your case. If you want to use these government funded programs you will need a referral from the court where you case is filed.

You can always contact a private attorney, like myself, who does private mediations as well. Generally, the cost of mediation is split evenly between the disputing parties. However, if the parties have made other arrangements then a mediation will not get involved in how payment is made, unless that is a dispute within the mediation itself.

I think that anyone who want to use mediation to resolve their dispute should verify the cost of the services in advance. Most attorneys will charge a fee for the mediation session, usually at a specified hourly rate. In addition, there is usually a flat rate fee to draft the documents needed upon settlement of the case to be filed with the court. I have noticed that most mediators charge more than their normal hourly rate for mediations. I do not subscribe to this and my regular hourly rate as an attorney is the same rate I charge for mediation services.

Depending on the complexity of the cases, the documents that needs to be produced for settlement/negotiation, and issues in dispute the mediation may take multiple days. Some mediations can be completed within an hour, while other take four to six hours. You can always obtain an attorney’s position on the settlement before submitting it to the court for approval.

The benefits of mediation:

  1. To not take up time in court for issues that can be resolved outside of court. You can mediate a case before anything is ever filed in court;
  2. To be able to represent your settlement/case in court within few minutes, rather than siting in court all day waiting for your case to be called (where a decision may not even be rendered);
  3. You split the cost of a qualified attorney, rather than each party paying your own attorney fees;
  4. You get an agreement that both parties can “live with” and are not decided by the judge;
  5. If a resolution is not reached, you may be closer to resolving issues, have some issues (if not all resolved) and you can understand the other parties position.

Why not contact our office today to settle a dispute?

Jurisdiction

In legal matters involving children, physical location of where child lives is very important when deciding jurisdiction. If one parent moves a child out of state, then the jurisdiction could change immediately, or after a statutory period of time depending on which state.  In Massachusetts, the duration is six (6) months or more—at which point Massachusetts no longer has jurisdiction over the parties.

Therefore, any modifications (changes that need to be made to an agreement) must be done in the child’s new home state. However, the Commonwealth of Massachusetts can still enforce any court orders and a contempt filed in Massachusetts (assuming the other party remains in MA) can be addressed and heard by the court. If the custodial parent is served in hand with the contempt summons and he or she fails to show for the contempt hearing, then a capias (warrant for their arrest) will be issued. If both parties are present for the hearing, then the court will address the contempt and ultimately make a ruling. However, the contempt being filed by the non-custodial parent must pertain to the parenting time.  A contempt for non-payment of child support can also be filed in Massachusetts.

If the other state modifies the Massachusetts court order, then Massachusetts would only be able to address issues pertaining to support for the child.

The Massachusetts court have no jurisdiction to modify or change the orders after the child is gone more than six months. A modification would need to occur in the child’s home state, where they are currently residing.

Removal of children out of state

This is American and I can choose to live wherever I want to. I do not need the court to tell me where I can go and where I cannot. Refusal t allow me to move is violation of my Fifth and Fourteen amendments to the US Constitution. If I want to leave Massachusetts then I can, right?

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If you have children and the other parent wants to continue to live in Massachusetts and does not want you to take the children to another state permanently then the answer is not a simple one.

We are only minutes from the Connecticut border now so an extra five
minutes drive will not make any difference.

I have heard this statement so many times in my practice and the truth is that it does matter and it does matter a lot.

In most separation agreements (terms of the divorce), there is language that precludes one parent from permanently leaving the Commonwealth of Massachusetts without a court order or obtaining other parents’ permission. Even without that language in the separation agreements, Massachusetts General Laws, c. 208, § 30, states that children “shall not . . . be removed out of this commonwealth without such consent . . . without the consent of both parents, unless the court upon cause shown otherwise orders.”

In other words, both parents must agree or the court must approve the parent to take the children out of the Commonwealth. The reasoning behind this, in part, was to prevent a parent from alienating the other parent or prohibiting the child-parent relationship/bond.

If the other parent does consent then it is best to get it in writing, and whenever possible, to make it a court ordered modification.

There are different standards required by the parent in order to prove that they should be permitted to move out of the Commonwealth with their children. The most well known is based on the “Real Advantage” test as established in Yannas v. Frondistou-Yannas, 395 Mass. 704, 1985. While Yannas is an old case it is still good law and is applied in full, or in part, in removal cases. The real advantage test is a two-prong test and both prongs must be met in order for the court to allow removal.

“If the custodial parent establishes a good, sincere reason for wanting to remove to another jurisdiction, none of the relevant factors becomes controlling in deciding the best interests of the child, but rather they must be considered collectively. Every person, parent and child, has an interest to be considered. The judicial safeguard of those interests lies in careful and clear fact-finding and not in imposing heightened burdens of proof or in inequitably identifying constitutional rights in favor of one person against another.” Yannas 712-713.
When considering moving out of the Commonwealth with your children it is best to consult wt. an attorney months in advance to better understand the law and what a move would legally entail.

The Yannas case pertains when one parent is the custodian. In situation where the parents share custody, then Mason v. Coleman is more applicable. 447 Mass. 177 (2006). “Shared physical custody contemplates that ‘a child shall have periods of residing with and being under the supervision of each parent . . . assur[ing] . . . frequent and continued contact with both parents’.” G. L. c. 208, s. 31. The court must determine what is the child bets interst given all relevant factors.

When a restraining order is needed?

 

Restraining Order

Just because you are planning on divorcing your spouse do not plan on forcing them out of their house, or obtaining custody of the children, by obtaining a restraining order. Restraining orders (also known as an abuse prevention order or a “209A,” which is the statute that govern this law) were created for people who are in imminent fear of bodily harm from another individual.  It is in place to protect people and not to be used as a weapon.

Pursuant to Massachusetts General Laws, Chapter 209A, the person seeking a restraining order must have a blood relationship, or was or is in a dating relationship with the party they are seeking protection from. They must draft a sworn statement stating specific facts as to what happened and as a result why they are seeking the order of protection. They then must present the sworn statement and any additional facts to the Court in order of the Court to determine if the abuse prevention order is warranted or not.

If the court finds enough evidence to support your request than the other party must be served with the restraining order and a date for them to appear in court will be issued. Certain people could ultimately lose their employment if a restraining order is issued.  Anyone who has a restraining order issued against them must immediately surrender any and all firearms and weapons to the police. Even if the restraining order is dismissed after a hearing the police can still retain those firearms and weapons and may ultimately revoke your license to carry or an FID (for pepper spray or hunting) cards.

Depending on what the restraining order states, anyone who has a restraining order issued against them must usually vacate their home and be precluded from seeing their children for a period of time.  The restraining order will have a date to return (usually 10 days) to the court allowing both parties to present their respective positions.

The goal of seeking and issuing a protective order should be when you are in imminent fear of the other party and not a tool to gain an advantage or ruin someone’s career.

Adultery and how it relates to divorces

 

Yes, it is true that adultery is illegal in Massachusetts. Pursuant to Massachusetts General Laws, Chapter 272, Section 14 is it illegal for a married person to have sexual intercourse with someone other than their spouse. The penalty is up to three years in prison. The law continues to remain in effect. However, I have been told by Police Chiefs that they will never charge someone with the crime of adultery and in my lifetime, I have never seen it prosecuted.

There are many clients who want to file for divorce on the grounds of adultery. You can certainly do so but the court will not appreciate it and I would strongly discourage it. To file for divorce on the grounds (reason) of adultery you are required to list both your spouse and the person who he/she has engaged in the affair with. That person must also be listed as a Defendant and would also need to be served with the complaint for divorce.  At the end of the day, filing for divorce based on adultery will not likely get you anything more and it will certainly manage to antagonize the situation where your spouse will want to fight over everything simply because you are making his/her life public and brining this other person into the divorce.

The only reason that the court would care about adultery is if a spouse was wasting marital assets by giving the other person extravagant gifts, vacations, etc.

I understand that your pride is hurt and you may never be able to forgive the betrayal but adultery is all but irrelevant when it comes to its criminality and any implications in a divorce situation. Instead I recommend that the person who was cheated on become a strong resistant person and make the best decision for their future rather than focusing on the injustice.

If the police and the courts do not care about adultery, then the rest of people must learn how to best benefit from the circumstances.

High Stakes: The Unexpected Fallout of Marijuana Legalization and Its Shockwaves in Homes and Workplaces

Post-Legalization Discussions and Legal Challenges

The aftermath of a new law’s passage, such as the one legalizing marijuana, is always intriguing. One might expect a flurry of conversations discussing enforcement and potential legal issues. However, these pertinent topics were conspicuously absent during the bill’s voting phase. It’s a peculiar phenomena, almost like waking up to a house full of unwelcome guests the day after a party.

When the bill was first proposed, I was burdened with considerable worries about its enforceability and potential consequences. A prime example revolves around living arrangements, particularly multi-family buildings. When marijuana consumption becomes legal in your home’s privacy, it doesn’t mean the smoke produced respects boundaries. The smoke doesn’t confine itself to your apartment, and it could leak into neighboring spaces. Therefore, you might unintentionally expose other residents to your marijuana smoke. It’s akin to playing loud music in the middle of the night; while you might enjoy it, it can seriously disturb your neighbors, and in this case, the smoke could potentially impact their health and well-being negatively.

Deepening Impact on Families and Parental Rights

The law’s blanket legalization doesn’t automatically imply that parents have a free pass to consume marijuana without considering their children’s safety. Let’s imagine a situation where a parent is frequently under the influence around their young children. The Department of Children and Families (DCF) might step in, as they are mandated to ensure children’s safety. Depending on the home situation, they might even go as far as attempting to remove children from the household due to habitual marijuana consumption.

Emerging Challenges for Business Owners

Business owners find themselves navigating a sea of fresh challenges post-legalization. For instance, without a policy explicitly prohibiting marijuana consumption at the workplace, it’s no longer straightforward to discipline or terminate employees who indulge. It’s akin to trying to enforce a dress code that doesn’t exist; there simply are no grounds for action.

Law Enforcement Dilemmas

Law enforcement agencies face a new set of difficulties, too. At present, there’s no reliable test to gauge if an individual’s marijuana consumption has impacted their ability to drive safely, similar to breathalyzer tests for alcohol. Furthermore, the question of whether marijuana consumption could potentially serve as a defense in criminal cases remains unresolved.

The Critical Role of Voter Education

The complexities arising from this legislation emphasize the need for voters to educate themselves thoroughly on a bill before it transitions into law. Just as we wouldn’t purchase a car without considering all its features and potential issues, it’s crucial not to pass a law without understanding its implications fully. Sometimes, it’s best to let a bill fail, rework it, and resubmit it at a later stage, ensuring it has undergone necessary refinements.

Implications for Landlords and Their Swift Response

With the law now officially in effect, landlords find themselves on the clock to respond appropriately. They must decide whether to allow marijuana smoking or cultivation in their buildings. A similar situation would be if pets suddenly became universally legal in rented spaces; landlords would need to update their policies swiftly. They also need to incorporate relevant clauses in new or existing leases. Households with children, as well as business owners, must educate themselves about potential repercussions and establish clear and comprehensive policies on marijuana consumption to prevent potential disputes or legal complications.

Worcester Judges

As Judge Gregory Roach retires, I find myself contemplating his successful career in Worcester. Here are some of my reflections:

Though I’ve never held a judgeship, I can imagine that the job is incredibly challenging. Judges must dissect mountains of testimonies and discern the core facts of the case. As attorneys, we bear the responsibility of persuading the judge that our version of the story is accurate, hoping for a decision in our client’s favor.

Frustration arises when a judge lacks understanding of the law, or the requisite level of proof, or fails to recognize the shift in the burden of proof to the other party. In such situations, we, as attorneys, must step up to educate the court. Judge Roach consistently demonstrated his knowledge of the law, something I appreciated every time I appeared in his court.

In my eyes, an ideal judge possesses a deep understanding of the law, stays updated with all relevant case law, and aptly applies the law without any additional effort on my part. I should concentrate on facts and how they align with the law, thereby justifying why the court should rule in my client’s favor.

It benefits greatly when a judge actively listens to the facts, and when fitting, provides feedback on potential rulings based on the presented facts. This feedback is particularly beneficial in Family and Probate Court and Housing Court cases. Sometimes, a nudge from the judge is all it takes for parties to settle a matter.

Ultimately, a judge must stay neutral throughout proceedings. Favoritism should never influence their decisions. Relying on the case facts and law is crucial as each verdict impacts individuals and families significantly.

Same Sex Adoption

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Chapter 210, Section 1, allows a “person of full age may petition the probate court in the county where he resides for leave to adopt as his child another person younger than himself, unless such other person is his or her wife or husband, or brother, sister, uncle or aunt, of the whole or half blood.”

When a same sex married couple have a child through vitro fertilization (IVF) with the assistance of a known, or unknown, sperm donor they are not require to notify the sperm donor parties of the adoption as the “plain language” in the statute does not require it.

“G. L. c. 210, § 4, requires notice of a petition for adoption to be given only to those persons from whom written consent to the adoption must be obtained. See G. L. c. 210, §§ 2, 4. No notice is required for persons not expressly included in G. L. c. 210, § 2.” Adoption of a Minor, 471 Mass. 373 (2015). Notice is required to be given to the “lawful parent.”  The Court finds that “lawful parentage, and its associated rights and responsibilities, is conferred by statute on the consenting spouse of a married couple whose child is conceived by one woman of the marriage, through the use of assisted reproductive technology consented to by both [parents].” Id.

There are circumstances where a “punitive father” may request to establish his paternity. Some of those circumstances would be where the child’s mother was married to someone else at the time of the child’s conception or within 300 days after termination of marriage, or the mother was married when the child was born.

Adoption

 

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As is in all child custody cases, including adoption, the standard is what is in the best interest of the child. Even when a parent has had little to no interaction or bonding with a child, either by choice, alienation or circumstances, it may not be beneficial for the child to have that relationship permanently severed by way of an adoption. The Court must determine not only what is in the child’s best interest currently but also how that determination impacts the child in a few years, and ultimately for the rest of his/her life.

Once an adoption is granted the child no longer has any rights to any benefits that the biological parent may have to offer, such as child support pursuant to G.L. c. 208, § 28, health insurance coverage, social security benefits in the event of the biological parent’s disability or death. 42 U.S.C. § 402(d) (2010). It would also disqualify the child from inheritance from the biological parent and the biological parent’s family under the laws of intestacy. G.L. c. 210, § 7.

Depending on the adoptive parent’s ability to financially care for the child, the termination of the biological parent’s rights would severe any child support obligation. Therefore, the Court must consider whether the adoptive parents will, may become or are a public charge. Even if the biological parent’s income is minimal the Court will order that parent to pay child support to assist in the well being and care for that child.

The Court must also consider the parent-child relationship and how if severed, through an adoption, would affect the child, now and ultimately forever.

“In the negotiation of their disengagement, divorcing parents may not bargain away the best interests of their children in general, and the children’s right to support, financial or otherwise, from either one of them in particular.” Adoption of Marino, 77 Mass. App. Ct. 656 (2010). See Knox v. Remick, 371 Mass. 433, 437, 358 N.E.2d 432 (1976); Wilcox v. Trautz, 427 Mass. 326, 334-335 n. 7, 693 N.E.2d 141 (1998); White v. Laingor, 434 Mass. at 66, 746 N.E.2d 150; Quinn v. Quinn, 49 Mass.App.Ct. 144, 146, 727 N.E.2d 92 (2000).

However, each case is unique and the circumstances in each case must be looked at to determine if adoption is a viable option.