Landlords and property owners have a duty to protect lawful visitors to their property from dangerous accumulations of ice and snow. The duty requires a property owner to act reasonably under all of the circumstances, including the likelihood of injury to others, considering the probable seriousness of such injuries, and the burden of reducing or avoiding the risk. So yes property owners have a duty to shovel and salt their sidewalks to protect against foreseeable injuries to visitors to their property. An injured person must notify the owner of private property within 30 days of injury or damage from snow or ice on their premises. Remember to consult with an attorney when you have a legal question.
In August 2013 revised Child Support Guidelines were issued by the Massachusetts Trial Court which supersede all previous versions of the Guidelines. These Child Support Guidelines provide a means to calculate child support in Massachusetts. In accordance with recent case law, if your present child support order differs from the amount to be calculated from these guidelines, the revised guidelines control, and the Court must modify the order in accordance with the guidelines, unless reasons for a deviation exist. Reasons for deviation are set out in the guidelines. For assistance in determining how the Child Support Guidelines may apply to your particular situation, please contact us for a free consultation.
Child custody is broken down into two general categories: legal custody and physical custody. Legal custody can be defined as the right to make the legal decisions for a child, such as educational, medical, and religious. One can consider legal custody as the authority to sign consent for a child. In Massachusetts there is a presumption in favor of shared legal custody for children, by their formerly married parents after a divorce. The theory behind this presumption is that each of these categories can involve difficult decisions, and the old adage of "two heads are better than one" often applies. If the "two heads" are parents that love the child, they are likely to come up with a better decision together, than one parent may come up with alone. This of course is not always true and parents can disagree. In these circumstances the Court is available to determine the final decision. Some examples of difficult legal custody decisions, are the age at which a child may commence kindergarten, what school shall a child attend, should a child engage in a particular sport, will a child wear braces, will a child undergo a particular voluntary surgery, will a child practice a particular religion, and so on. In all of these legal custody situations, reasonable people may disagree on the ultimate decision and for legitimate reasons. Shared legal custody most likely, will not be ordered, if there has been abuse between the parents.
Physical custody is different. Physical custody may be defined as where the child resides, and with whom. In some cases, parents may have shared physical custody, where the child basically has two residences between the two parents, and lives in both households an approximately equal amount of time. It is my experience that shared custody arrangements for small children are rare. To be successful the parents ideally will live in close proximity to each other, and are able to communicate and cooperate well with each other about the child. These prerequisites will eliminate many divorcing couples. With older teens this arrangement can often work well. Particularly if the child is accustomed to being co-parented by both of his/her parents, and again the parents live close to each other. This arrangement allows a child to move somewhat freely between the two parents' households. For example, taking a bus from one parent's household and then returning after school to another parent's home.
It is important to note that the child custody statute in Massachusetts is gender neutral, which means that both parents have an equal right to custody of their children. In a custody contest, the Court will consider the child's best interests, and which parent is the most fit. In considering the child's best interests, the Court will consider who had primary responsibility of raising the child during the marriage.
Custody questions, when the parents cannot agree as to a child's residence, can be of the most painful type of proceeding in the Massachusetts Family Court, for both the affected parents and children. It is important to note that a child needs both of her parents. The mere fact that one parent is deemed the custodial parent and the other is the visiting parent, does not mean that either parent is more important than the other. Each parent plays a critical role in a child's growth and development into a healthy adult. Clearly if the parents can agree to what is best for their children after a divorce this is a major accomplishment and is to be commended. When parents cannot agree on custody there are often very good reasons for the dispute, and the Court will make the final decision, after hearing all of the evidence.
If you have questions about child custody issues please contact us for a free consultation to learn your rights and how the law in Massachusetts will affect you.
The Alimony Reform Act is now law in Massachusetts. YOu may click on the title to see the law as it was signed by Governor Patrick. It was signed by Governor Deval Patrick on September 19, 2011. It will go into effect on March 1, 2012. This new law changes everything to do with Alimony in Massachusetts. The law finally provides guidelines for practitioners and those contemplating a divorce to know what to expect in an alimony case. There will be defined types of alimony for different purposes, including rehabilitative, transitional, reimbursement, and general term alimony. If alimony is appropriate in a particular case, except for reimbursement alimony, the amount of alimony will generally not exceed 30 - 35 % of the difference between the parties' gross incomes. For example if a Wife is earning $2,000.00 per week and her spouse is earning $500.00 per week, she may be subject to an alimony order of roughly one third of the difference of their two incomes or .33 x $1,500.00 = $500.00 per week.
The duration of alimony will also be determined by the new statute. For a marriage of 5 years or less, general term alimony shall not exceed one half of the number of months of the marriage. For marriages of 10 years or less, but more than 5 years, general term alimony shall not exceed 60 percent of the number of months of the marriage. For marriages of 15 years but more than 10 years, general term alimony will not exceed 70 percent of the number of months of the marriage. For marriages of 20 years or less but more than 15 years, general term alimony will not exceed 80% of the months of the marriage. For marriages of more than 20 years, alimony can be ordered for an indefinite time period.
Specific rules for cohabitation are included as a reason to stop alimony payments. Alimony will typically terminate upon the payor reaching normal retirement age as defined by the Old Age Social Security statute.
Modifications of current alimony orders are permitted within a certain time frame to have old orders comply with the new statute. This is good news for Massachusetts.
During this transitional period before the law becomes effective the law is not binding upon courts. No doubt the pending statute will influence their decisions however. If you want to know how the new law may affect you, please call us to make an appointment today.
Good news for all of those awaiting alimony reform. The alimony reform act has passed the Massachusetts house. This bill is now one step closer to becoming law. To review the proposed act in total please click on the following link. An Act To Reform Alimony Once enacted the bill will put an end to life time alimony in many cases. It will provide more predictability to alimony awards and give judges guidelines on terms and amounts of alimony. This will bring about major change in this area of family law in Massachusetts. We will keep you posted on new updates.
Custody cases are often the most difficult cases dealt with by the Probate and Family Court. The information presented to the Court in a custody case initially, are often allegations raised by one parent against the other. The other parent may respond with contradictory allegations against the other parent. The Court is presented with the dilemma of which parent to believe as the situation may often be described as "he said - she said". Without independent documentary evidence verifying a parent's allegations, a Court can struggle with what is in the best interests of the child. To assist the Court with this thorny problem a Judge has the power to appoint a Guardian ad Litem either of his or her own accord, or upon a request of one of the parents in the case. A Guardian ad Litem is an independent person who is specially trained to investigate and report back to the Court on the custodial situation. The person appointed may be a professional clinician or may be an attorney who is trained to report back to the Court to assist the judge on sorting through the various allegations that a parent may make in a particular case. It is the obligation of the Guardian ad Litem to investigate facts in cases involving the care and custody of minor children and other matters that implicate the interests or rights of children. The information gathered by the Guardian ad Litem is confidential, and will not be released to outsiders, but it is their duty to detail to the Court what they have learned.
A guardian ad litem will often meet and interview parents directly, meet with school personnel, treating medical professional, and others whom they feel will have information on what may be in the child's best interests. The GAL will request a release to acquire medical, health and hospital records. They will meet with the child as well. Often this investigator will travel to the parents' homes and view each parent with the child. All of this information can be invaluable to a judge who is viewing the situation from the vacuum of a Court room. The report is typically impounded so the personal information within it does not find its way onto the internet or some other forum.
In some situations the Commonwealth of Massachusetts will pay the cost for the guardian ad litem. But more likely than not the parents will each share the cost for the guardian ad litem, and will be required to provide the GAL with a lump sum in advance for their anticipated costs of evaluating the matter.
The GAL is not an advocate for either parent but is an information gatherer for the Court. Probate Court Standing Order 1-05 provides standards for Guardian ad Litem/Investigators. If you have a question about whether a Guardian ad Litem will be helpful in your family law situation or some other question please call us today.
The Appeals Court has just issued a favorable decision on a contempt case tried and won by Attorney Ann Ponichtera DeNardis. The decision is not yet published, but will be soon. You can read the decision in the slip opinion which follows M.M. vs. D.A. In this case Attorney DeNardis successfully tried a case on behalf of a mother whose child was wrongfully taken, and retained in Costa Rica by his biological father. In the underlying decision, the Probate Court ruled that the father had violated the custody orders of the Probate Court, and incarcerated the father until he returned the child to the United States and to the mother. Unfortunately in this tragic case the father has chosen to remain incarcerated, rather than return the child to his rightful custodian - the mother. The Appeals court affirmed the decision of the Probate Court judge in its entirety. Hopefully this will spur the father to do the right thing, and take all actions necessary to assure that the child is returned to his mother. If good news happens - we will post it here.
The Supreme Judicial Court in Massachusetts recently concluded in the case of Ansin vs. Craven-Ansin that a postnuptial agreement, also known as a marital agreement, may be enforced and is not against public policy. This ruling brings about a major change in marital law in Massachusetts. Now married couples can enter into a contract after they are married as a means to stay married. A post nuptial agreement is defined by the American Law Institute, as an agreement between spouses who plan to continue their marriage which alters or confirms their legal rights and obligations that would otherwise arise through a divorce.
In the Ansin case the couple had separated after nineteen years of marriage, and the husband refused to continue in the marriage, unless the wife signed a marital agreement as a symbol of her commitment to the marriage. The husband similarly agreed to recommit to the marriage, if the wife signed the agreement. The Husband and Wife each hired an independent attorney, fully disclosed all of their assets to each other, and negotiated the terms of an agreement which they signed. After reconciling and residing with each other, ultimately the reconciliation failed, and the parties divorced two years later. The agreement was upheld by the Court, despite the protests of the wife.
The Court concluded that before a marital agreement shall be sanctioned by a Court, careful scrutiny must be given as to whether: (1) each party has had an opportunity to obtain separate legal counsel of their own choosing; (2) there was fraud or coercion in obtaining the agreement; (3) all assets were fully disclosed by both parties before the agreement was signed; (4) each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of the marital estate and marital rights in the event of a divorce; and (5) the terms of the agreement are fair and reasonable at the time of execution and at the time of the divorce.
This case now gives couples who are having marital problems an alternative to divorce. An agreement now can be drawn up as a commitment to the relationship which would specify the terms which would prevail if they divorced. If the couple wants to give their marriage another try, they can choose to sign the agreement, under the terms and protections specified above. If a spouse refuses to sign the agreement, then either spouse can move forward with a divorce complaint, knowing that they at least they tried to resolve their difficulties, and tried to save their marriage through a marital agreement.
If you have questions about how a post nuptial agreement or a marital agreement might apply to your situation, please call us for a free consultation.
In a recent case where Landlords failed to establish the required escrow account and to hold the full amount of the Tenants’ security deposit in that escrow account, the Appellate Division of the District Court found this to be a violation of the Massachusetts Security Deposit Statute. In Lopez et al. v. Williams, the Court stated that no matter what the intentions of the landlords were or how innocent or unaware the landlords were of that statute, the landlords were required to make an immediate return of the Tenant’s security deposit on the expiration of the thirty-day deadline established by the relevant subsection of the statute. The landlords, by this failure, also violated other subsections of the statute and violated the consumer protection law. Despite any good faith or mal-intent of the landlords, the Court awarded triple damages and other monetary sanctions against the landlords.
Practical Suggestions from Attorney Daniel DeNardis
If you are a landlord or a tenant, contact a local organization such as PACE. It may have some information for you regarding landlord/tenant laws. It may also be able to suggest other sources. You can also contact an attorney. The law firm of Ponichtera & DeNardis, P.C. offers a free consultation for this and other types of legal matters. With our advice, we may help you stay out of trouble, save you money and reduce your stress and anxiety. We listen, we care, we take action.
The filing of a Complaint for Contempt pursuant to M.G.L. c. 215 section 34, is the procedure for enforcing a Court order or judgment in the Commonwealth of the Massachusetts Probate and Family Court. A Contempt Complaint may be either civil or criminal in nature. At the hearing on the Complaint for Contempt the defendant is entitled to an evidentiary hearing, during which time witnesses are called and evidence is introduced. Many cases, by agreement, are conducted upon the representation of the parties or their attorneys - a simplified procedure during which each side tells their side of the story to the judge. There are certainly pros and cons to each respective procedure, which an attorney can advise you on. At the hearing on a complaint for contempt, a plaintiff must prove that there was a clear and unequivocal order, from which there was a clear and unequivocal disobedience. In a contempt proceeding for non payment of a support order, a Defendant may raise as a defense that he had an inability to pay the underlying judgment or order.
In entering a judgment for failure to comply with a money judgment of the Court there is a presumption that the defendant is responsible in addition to all arrears, all of the attorney's fees and costs associated with bringing the Complaint for Contempt. So be sure to make a motion for payment of attorney's fees and costs at the time of the hearing. Interest will also be assessed from the date of the filing of the Complaint for Contempt, so ask for it.
Upon a finding of Contempt, a judge can enter an order for the Defendant to serve a jail sentence, to pay the full amount due under the order or judgment, to make regular payments of support plus an additional amount of arrears, to seek employment, to participate in community service, as well as other remedies.
If you believe that you are entitled to a judgment of Contempt for the failure of another to obey an order or judgment of the Court, or if you have been served with a Complaint for Contempt for your alleged failure to comply with a judgment or order of the Court, contact an attorney today to learn more about your rights and remedies. The law related to contempt actions is complex and often confusing for the non-lawyer. Be sure to seek professional advice first.
The Massachusetts Bar Association and the Women's Bar Association recently voted to support the proposed "Alimony Reform Act of 2011". Now the Act is making it's way through the Massachusetts legislature. If passed the Act promises to bring big changes to Alimony judgments in the Commonwealth of Massachusetts. Presently Alimony awards in Massacusetts are typically unpredictable and can be subject to continuation until the death or remarriage of the former spouse.
The Act provides for predictability of alimony awards. Alimony is defined within the act as the payment of support for a reasonable amount of time. Different types of alimony are provided for and defined within the act including General Term Alimony, Rehabilitative Alimony, Reimbursement Alimony and Transitional Alimony. Durational limits are set depending upon the length of the marriage. Full Retirement Age is set as the termination date for Alimony which is defined as the payor's usual or ordinary retirement age for United States old-age social security benefits.
An important provision of the Act provides that the enactment of the statute shall be deemed a material change of circumstances sufficient to warrant the modification of the durational limits of an existing alimony award that exceeds the durational limits set forth in the act. Specific timelines are set for the filing of requests to modify existing alimony orders. The passage of the Alimony Reform Act of 2011 will llikely provoke a flurry of activity from payors seeking a relief from alimony awards that extend beyond retirement.
Check back here for progress on this important legislation and how it may affect you.
The Court is empowered to enter temporary orders after a Complaint for Divorce is filed, upon the filing of a formal request known as "a Motion" with the Court. Temporary Orders are by their very nature - temporary. They are intended to last until further orders are entered or until a judgment of divorce is issued on a case. Issues addressed by a Court through Temporary Orders are issues that typically cannot wait until later. Common temporary orders will address important issues like: child support, custody, visitation, continuation of health insurance coverage, temporary spousal support and orders for protection from abuse. Vacate orders or an order compelling one spouse to leave the marital home are also the subject of temporary orders. Once the divorce is final, temporary orders are typically no longer valid, and the Court will issue new orders at the time of the divorce, either by the agreement of the involved parties or after a trial. Some temporary orders like an order for protection from abuse, will expire on their own terms by the expiration date of the order, unless extended.
Temporary Orders are very important since they often set the tone for the future progression of the case. Judge's are often reluctant to dramatically alter temporary orders until a trial on the merits of the case. Typically Temporary Orders are issued after the oral presentation in Court of attorneys or the parties, if unrepresented. The judge often makes a judgment call on who they believe at the time, or who makes the best presentation. It is very important to be prepared at the time of the Court hearing. With crowded case dockets, the judge may only have a few minutes to hear your case. This is no time to "wing it", and hope for the best. The decisions the Court makes at the Temporary Orders hearing often last for many months or even years in some cases. I cannot repeat enough how important it is to be prepared for your Temporary Orders hearing.
If money is involved, each party will have to prepare a financial statement. You should work on this document carefully - before you get into court. Use a calculator, refer to your paycheck stub, and your W-2. If you don't believe your spouse will be truthful in their financial statement, now is the time to subpoena their employer to find out their true wages. If you have last year's taxes bring them to Court as well. The more help you can provide the Court, the more informed the judge will be to render an appropriate decision.
Remember to consult with an attorney to get answers to your questions about temporary orders. If you already went to Court for Temporary Orders and you are dissatisfied with what happened, don't give up, an attorney may be able to help you change them.
The Homestead Law has recently changed. A right of homestead will protect your home from sale by creditors with the exception of taxes, and certain other exceptions up to a specific equity value in your home. Presently, if you live in your home as your principal residence, and are under the age of 65 years of age, you must declare your home as a homestead by paying to file a document in the Registry of Deeds where you live.
Good News -Recently the Governor signed a bill into law that would automatically give a right of homestead to a homeowner. The amount of equity protection in this automatic homestead is limited to just $125,000.00. This is a good start, but a homeowner still can formally file a homestead declaration in the Registry of Deeds and increase the level of protection. A homeowner who files the declaration, protects the equity in their home for up to $500,000.00. This does not change. There are other changes in the homestead law as well. If you'd like our assistance in the preparation of a homestead call us.
Of course many grandchildren enjoy a regular visitation relationship with their grandparents. All do not however. What happens if a fit parent chooses for one reason or another to prohibit visitation between their child and a grandparent? Can the grandparent force the biological parent to allow visits with a grandchild? The answer is a complicated one, and ultimately depends on the circumstances.
The United States Supreme Court has tackled this thorny topic and concluded that parents have a right to raise children in the way that they deem appropriate, which includes denying a grandparent the right to visit with their grandchild. Under the new standard it appears that courts will only intervene if such denial of visitation will cause significant harm to a child by adversely affecting her health, safety or welfare. This will require a grandparent to prove, for example a significant pre-existing relationship with the child - this will be something more than just seeing a child on Sunday afternoons for dinner or an occasional trip to the zoo. The trend of the Courts in this area seems to be that parents have the right to make their own decisions about their children, even though other family members may be hurt by their decision. So long as a child is not being significantly harmed by the decision - parents have a right to decide what is best for their child. You may agree or disagree with the trend of the Courts. I believe that the thought process behind the trend is that if a parent is prohibitting contact with a grandparent, they must have some good reason for doing so - and the courts do not want to interfere with a parent's choice- except in extreme cases. Contact a lawyer to learn how the Court is likely to view your situation.
A Pre-Nuptial Agreement is an agreement made in contemplation of marriage which seeks to determine property division and alimony on a divorce or upon death of one of the parties. A pre-nuptial agreement is often a good idea for people who are marrying later in life and have amassed significant assets prior to the marriage on their own. Others finding such an arrangement desirable, may be those with children from a former marriage, who want to assure that their assets will be preserved for their children. Individuals who’ve inherited significant amounts of property may also consider the benefits of preserving those assets on their side of the table, prior to entering into a marriage.
Mostly a pre-nuptial agreement requires a couple to carefully consider the financial aspect of their marriage prior to jumping into a marriage. A pre-nuptial agreement is often not considered for the young couple who have nothing, and therefore have nothing to lose. But for those who have amassed some individual wealth before marriage, a pre-nuptial agreement is a way of honestly discussing with a future spouse your expectations, if the marriage does not work out.
If you’re contemplating entering into a Pre-Nuptial Agreement, there are a number of items which must be addressed to help to assure that the agreement will hold up in Court. An agreement must both be valid and enforceable, for a Court to hold the parties to it.
In judging the validity of an pre-nuptial agreement the Court will consider(1)whether the agreement was fair and reasonable at the time the agreement was signed, for the party contesting the agreement (2) whether the contesting party was fully informed of the other party’s worth prior to the agreement’s execution, or had, or should have had, independent knowledge of the other party’s worth; and (3) whether a knowing waiver by the contesting party of his or her rights is set forth. An agreement may be found to be unfair and unreasonable and therefore invalid, if the agreement essentially strips a party of all marital interests. In short the other party must be left with something, for an agreement to be valid. Something must be to the benefit of the other party, for an agreement to be found to be valid.
Complete details of the financial assets, income and liabilities of each party must be exchanged with the other party. A good way to prove disclosure, is to attach the financial disclosure to the signed agreement along with initials of each party showing that they read and understood the disclosure – and the date that they received the disclosure. If the agreement is sought to be enforced at a later date, the judge will want assurances that both parties were fully aware of the financial situation of the other party, before they signed the agreement. So if you want to protect your assets, you need to be sure that the other side knows exactly what you want to protect. A pre-nuptial agreement is no time to be evasive about your net worth – full disclosure is what’s fair and what’s required.
The third prong of the test requires a knowing waiver by the contesting party of his or her marital rights. To assure that the parties know what they are giving up by signing the agreement – their marital rights should be plainly stated within the agreement – so there is no question about what he or she is giving up. Each party should be encouraged, and have a reasonable opportunity to get their own independent legal advice to review the agreement carefully with their respective legal counsel.
Timing is very important in a determination of whether or not an agreement is enforceable. Each party must have the opportunity to carefully consider the agreement and its ramifications without pressure of a looming wedding date. An agreement signed under duress will not be enforceable. An agreement is likely to be suspect if it is signed on the day before the marriage, when 300 guests are set to attend, and it is too late to call it all off. To make sure your agreement is enforceable, discuss the agreement months before the wedding plans are finalized. Sign it before it’s too late to get back your deposits, before the invitations went out, before the dresses are bought and ordered… You get the idea - before the pressure is on. The earlier it is signed, the greater the likelihood that there was no undue pressure to sign the agreement. A Court has found that an agreement signed thirty days before a marriage was enforceable. But in my opinion, the earlier – the better!
Lastly an agreement must be fair and reasonable at the time of a divorce as well. This goes back to the stripping of the other spouse of all marital rights issue. It’s unlikely if a spouse is stripped of everything, that they would otherwise be entitled to, that the agreement will be enforced.
I guess the question becomes if you truly do not want your potential spouse to have the possibility of getting anything from you in the event of a divorce, and that’s what you want to achieve from a pre-nuptial agreement, then maybe you really don’t want to get married. But if you are honestly looking to protect your premarital assets, then a carefully crafted Pre-nuptial agreement can be used to preserve most of your assets, and most of your rights, so long as your future spouse is entitled to something in exchange.