What is involved in a Rent-to-Own?
Witnesses at trial
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:
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.
Child Support during COVID-19
Parenting during COVID-19
Divorce during COVID-19
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:
- You must be a victim or a survivor of a crime;
- You must have a civil (non-criminal) legal problem that is a result of that crime; and
- 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.
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Setting expectations in the divorce process
Unpleasant Surprises in Divorce
In life, we can categorize everything into “controllable” and “uncontrollable” aspects. We can control our actions, but not those of people around us. When seeking a divorce, it’s unrealistic to expect a difficult spouse to suddenly become cooperative during the proceedings.
While TV shows like Judge Judy might give the impression that lying spouses face immediate consequences in court, real-life legal processes can be time-consuming and costly. Here are a few things we can control:
Discovery
Uncovering marital assets is crucial, especially when spouses try to hide them. Skilled attorneys can analyze statements, reveal spending patterns, and determine true income figures.
At Reeves Lavallee, PC, one attorney settled a case involving hidden assets. The initial offer was $13,000. After months of discovery and uncovering assets, the final settlement reached over $260,000. Discovery is essential.
When responding to discovery requests, timely compliance is necessary. Adhering to Massachusetts Domestic Relations Procedure helps keep the process on track. The sooner you produce your discovery responses, the better.
Record Keeping
Document everything. Tracking updates and important dates in a concise journal helps save money and time. Detailed records enhance the attorney’s pretrial memo and effectively convey your narrative. For example, noting specific dates when Parent X was late to pick up the kids is more compelling than stating Parent X is “often late.”
Get It in Writing
Limit communications to texts and emails for accountability and to provide solid evidence for the judge. Verbal communication can be disputed, while written exchanges are harder to challenge. For instance, a text message confirming visitation schedules can serve as concrete evidence in court.
Financial Statement
Don’t underestimate the importance of your financial statement. Update it for each court appearance. The judge relies on this document to determine support awards and asset division. Fill it out accurately and ahead of your court date to avoid costly errors.
Conclusion
Divorce can be emotionally taxing, and every situation is unique. At Reeves Lavallee, PC, we understand the complexities and challenges you face. Our compassionate and experienced legal team is dedicated to providing you with the personalized, confidential service you deserve. We will guide you through your specific circumstances, ensuring that your best interests are protected. Don’t navigate this difficult time alone; let our expertise work for you. Call us at (508) 425-6945 to set up a confidential consultation today, and take the first step towards a brighter future.
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.
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).
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.
New Child Support Guidelines effective Sep 15, 2017
As required the Child Support Task force has met, established a new child support worksheet and it will be effective September 15, 2017. Every three (3) years the task force meets to determine how the current guidelines are working and what needs to change. Therefore, every four (4) years they issue a new child support guidelines which the courts and attorney must use moving forward.
The calculation formula is similar to those in years past (not the 2013 guidelines) but of course with several tweaks. This is the longest worksheet that I have seen in the past fifteen (15) years. I am working diligently to understand the worksheet, read the guidelines and start drafting samples so I can better assist my client.
Since the guidelines become effective in just under seven (7) weeks now is the time to schedule an appointment to determine how the new child support guidelines will affect you and your children or your support orders.
Child Support
The legislature is required to review and revamp the MA child support guidelines every three years. This means that every four years or so the child support guidelines are updated. While there is a committee, consisting of some attorneys, I often find that the legislature is not creating a formula that is most beneficial to the low or even middle class income.
In years past the guidelines have changed as to whether they will include all sources of income or simply just apply a 40-hour work week. Years ago, there was an increase once children became teenagers, and only the parent that provided health insurance for the children were entitled to deduct it. That has all since changed and likely will never return. Based on the case Morales, you no longer are required to prove a substantial and material change in circumstances in order to request a child support modification.
A new child support guidelines should be effect on August 1, 2017, or so we are told. Generally, the attorneys are able to review the new guidelines 4-6 weeks prior to them becoming effective. Until they are released, then we can do is speculate as to what the new guidelines will look like and how they will impact our clients. I would suggest anyone interested in finding out how the new guidelines will affect them to contact my office to book an appointment so we can discuss how you are impacted and the best way to protect yourself in the event that the guidelines will change for your family, if and when a modification is filed.
Children and having their voices heard
The law is every changing and has been leaning toward giving children of divorced/separated parents more and more rights and more means to have their voices heard.
There are three ways in which your children voices may be heard by a court. They are all permitted in any litigation involving custody or parenting time. This would include cases for custody, paternity, divorces, modification, and in limited circumstances contempt.
- Guardian ad Litem, aka GAL. This is a person who has received specialized training and must be recertified every few years. They are often attorneys. However, there are medical professional (often psychologist or psychiatrists or nurses) that may also be GAL’s. The GAL will follow the order by the court as to any limitations, restrictions, broad scopes or number of hours spent on an investigation.
Generally, the GAL is paid by one or both of the parties involved in the action. The average cost is around $5,000.00. The age of the children can range from a few years until 17. Most reports are going to include interviews with the parties, the child/ren, collaterals (family, neighbors, school personnel, doctors, etc.). The GAL will go to each parent’s house, see how each parent interacts with the child and possibly go to the child’s school. After the GAL completed his or her investigation then a GAL report is created and submitted to the court. The standard for the report is “best interest of the child/ren.” The parties are not permitted to have a copy of the report but can read it with their counsel or at the courthouse in the clerk’s office. Based on if the Judge ordered it or not the report may include recommendations and conclusions.
- Attorney Representing Child, a/k/a ARC. This is exactly what is sounds like, your child would get a free ARC counsel has taken a required course and are doing the representation on a pro bono basis. ARC counsel will only be appointed for children of age 10 or more. ARC counsel does not care about what either parent’s position is other than to ask relevant questions to their client (the child). ARC will meet with their client to determine what their client’s wishes are. The standard for ARC counsel is report to the court their client (child’s) wishes. It is not a best interest standard. ARC counsel participates in all aspects of the pending court action and is permitted to submit exhibits, and witnesses if the matter goes to trial.
- Probation Investigation. This is a free service offered by the Court from the probation department (located at the court where you usually have to start your case). The only requirement for a probation investigator is that they work for the probation department. The age of the children can range from a few years until over 18.
The court will determine what issues will be addressed and reported. The probation officer will talk with the child/ren. They may talk with the parents, or collaterals, but it is determined based on the issues and the court order. The probation officer will likely spend five hours or less. Unless specifically ordered to do so the probation officer will not leave the court and the interviews will be conducted at the court (in person for the parties and child/ren, and by telephone for anyone else). After the probation officer completed his or her investigation then a probation report is created and submitted to the court. The standard for the report is “best interest of the child/ren.” The parties are not permitted to have a copy of the report but can read it with their counsel or at the courthouse in the clerk’s office. Based on if the Judge ordered it or not the report may include recommendations and conclusions.
I would suggest that if you are interested in having your child’s voice heard that you speak with me further regarding which option would be best for your case.
When is a good time to do estate planning?
All the time. Anytime. Now. When you are pregnant or having a child it is a good time. When you are getting married it is a good time. When you are thinking about retirement it is a good time. When you have assets it is a good time. When you don’t think your assets are worth anything it is a good time.
Everyone should have three basic estate planning documents executed.
- Will
- Durable Power of Attorney
- Health Care Proxy.
No one wants to plan for their health to fail or their mind to deteriorate or even to die. However, everyone must consider that it is a possible reality and ultimately you will also die.
Will
Most people think “I have nothing so why should I waste my money.” The truth is everyone has something. It might not be assets, but children. When you first have children, no matter your age you should have a Will executed. The purpose of the Will, even without assets, is to ensure that you pick the guardian(s) who will care for your children when you are no longer here. If you have assets you want to ensure that your assets go to the people you want to leave them to. If you do not have a Will then your estate must be probated and anyone, even a stranger, can seek to be the person in charge of distribution of your assets.
Durable Power of Attorney
Once executed, a power of attorney comes into effect when you are mentally incapacitated. The person who you designate will make financial decisions on your behalf and pay your bills during the period of incapacity. If you later gain capacity, such as coming out of a coma, then the assigned power of attorney no longer has authority to act on your behalf until and if you become incapacitated again.
Without executing a power of attorney, and if you became incapacitated, then someone would have to go to court and obtain a conservatorship to pay your bills. The power of attorney allows the same privileges without the need, time and expense of having to go to court to get such permission. If bills do not get paid then you may lose everything you have worked so hard for, including your vehicle or house.
Health Care Proxy
Like the power of attorney, a health care proxy comes into effect when you are mentally incapacitated. The person who you designate will make medical decisions on your behalf during the period of incapacity. If you later gain capacity, such as coming out of a coma, then the assigned proxy no longer has authority to act on your behalf until and if you become incapacitated again.
Without executing a health care proxy, and if you became incapacitated, then someone may have to go to court and obtain a guardianship to make medical decisions. Most people assume that because they are married their spouse has this right, or their parents if not married. The proxy allows you to pick the person who can make the medical decisions. It does not have to be your spouse or your parents.
Just think, if you are a child of divorced parents who agree on nothing, and you are not married, will your mother or father make that decision? Assuming you have a good relationship with both parents, they are both in the hospital demanding to make that medical choice on your behalf, yet they disagree on the medical treatment. Without a health care proxy, the hospital will be unable to act (absent and emergency) until a court intervenes and determines who should make the medical decision. Court proceedings can be time-consuming and costly. The health care proxy avoids the needs for a court to intervene.
Once you have a health care proxy executed do not sign another one just because the hospital or doctor’s office gave you another one. If you do you are voiding out the previous one done by an attorney. Instead simply tell the medical providers you already have one.
Once you have executed the documents it does not mean you never should think about them again. They should be reviewed and updated as needed. It is my suggestion that you review them at least every five (5) years.
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:
- 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;
- 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);
- You split the cost of a qualified attorney, rather than each party paying your own attorney fees;
- You get an agreement that both parties can “live with” and are not decided by the judge;
- 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.
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?
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.