Three Lawyers and a House

Is the title, “Three Lawyers and a House,”  the start of another lawyer joke? No, not this time. Buying a house is not usually a funny experience. To the contrary, purchasing real estate is usually quite stressful, because it is often the biggest asset and expense that people will have during their lifetime.

Massachusetts General Law ch. 184, Section 17B states, in part, “The responsibility of the attorney for the Mortgagee (aka the entity or organization who is lending the mortgage, typically a bank or mortgage company) is to protect the interest of the Mortgagee. Mortgagors (the person requesting a mortgage, usually the homeowner) may, at their own expense, engage an attorney of their selection to represent their interests in the (closing) transaction.”

Closing attorneys are usually pretty considerate to buyers and seller during the transaction. They typically are open to resolving any last minute negotiations or disputes; however, they are not obligated to do so.

Hiring an attorney to represent your interest is worth the additional expense; the cost is usually minimal, especially considering the overall expense of purchasing a home. What makes it so important to have someone on your side?

1. Buying a house is one of the most important legal agreements an transactions that you will enter into during your lifetime.You want someone to protect your interests and make sure that they are present in the agreement;

2. There are a lot of legal documents that you will be asked to sign and they can be confusing. You want someone who will take the time to explain to you what you are signing, to discuss the implication thereof, and answer your questions;

3. Errors happen even with the best attorney. You want someone to confirm that the terms of the loan are what you expected, because an error could cost you a lot of money during the life of the loan or cause an issue with your Title; and

4. Last minute disagreements between Buyer and Seller are not uncommon. You want someone to advocate for your position and make sure that any resolution is in your best interest.

Mortgagees will often allow your attorney to also appear as their Closing attorney; this is an exception, where the conflict of interest can be waived, assuming that all parties agree. By doing so, you can be assured that the Closing attorney is protecting you.  If you want your private attorney to serve as a Closing attorney, be sure that they are qualified to do so and that they have access to Title Insurance, with a reputable company, such as Old Republic Title Insurance Company, for which I am an Agent.

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Hello, Daddy!

I remember when we brought our first child home. It was a time of joy, excitement, and very little sleep. We were fortunate that my husband was able to take a week or so off from work. I remember feeling a bit envious we my husband returned to work, but only because it meant that I would volunteer to do feedings after midnight, so that he could be relatively “awake” when he went to the office.

Starting in April, 2015,  new fathers will have an opportunity to take up to eight (8) weeks of paternity leave. Massachusetts General Laws 149, Section 105D, as amended by St. 2014 c. 484 provides eight (8) weeks of paternal leave for the purpose of giving birth, placement in the home of a child under the age of 18, or the placement of a child under the age of 23 if that child has mental or physical disabilities.

The newly amended law provides an amazing opportunity for all fathers. The men that I have spoken about this with have told me that they would be unlikely to take such a significant amount of time off from work; however, they seemed excited that it would give them potential flexibility.

Fathers must satisfy simple criteria to qualify for paternal leave. First, the father must have worked at the company for at least three (3) months or the probationary period of employment. Second, the father must tell the employer of his anticipated departure with at least two (2) weeks notice and his expectation to return.

Of course, there is are exceptions within the new law. The most significant areas of concern are relate to the work environment and are intended to protect the employer. The size of the company dictates whether the new father is able to take advantage of the new law. Similarly, where both parents work for the same employer, the total time of leave is limited to eight (8) weeks.

As my grandmother always says, “A new baby to love is always a good problem.” Under the new laws, new dads have a baby to love and can now decide whether they want to take more time to love that baby from their home. I think that my grandmother would consider that an excellent problem.

Please feel free to share this post with anyone who may be interested. Receipt of same is not intended to offer specific legal advise or create an attorney-client relationship.

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Ready or Not…..

Parents are rarely ready to receive a diagnosis that their child is differently disabled or will face unexpected life challenges. Perhaps they knew that the diagnosis was coming, but, sometimes, it’s totally unexpected; either way,  they have entered a new reality.  Suddenly, they find themselves reading everything available on the Internet and being intimidated by terms such as “IEP” and “504 accommodation.”

Schools are obligated to provide services and accommodations for individuals with disabilities and special needs through Free and Appropriate Education (“FAPE). Appropriate education exists where a program is reasonably constructed to provide an academic benefit to a student based on the individual needs of that student.

Appropriateness is defined by Individuals with Disability Act (“IDEA”) and Section 504 of the Rehabilitation Act of 1973 (“504”); they often co-exist, but can be exclusive of one another.

IDEA is a Federal Statute intended to ensure free and appropriate services for children with disabilities. IDEA covers students, ages 3-21,  where the disability adversely affects the child’s educational performance or ability to benefit from general education. Students who require services under IDEA benefit from an Individual Education Plan (“IEP”), which is usually  developed by a team that includes teachers, specialists, and parents of the child. An IEP states the services to be received, such as speech, physical or occupational therapy, or mental health counseling are the most frequent services contained therein, but additional accommodations can also be included.

504 provides an opportunity for accommodations to be made for any person with a disability so that he or she may participate, to the greatest extent possible, in any activity or organization, which is Federally funded, such as a public school. 504 is more broadly defined than IDEA; it includes individuals with mental or physical impairment that limit a major life activity, such as school, if that impairment is either on record or generally known. Under 504, a student can access support, including, but not limited to, auxiliary aides, an altered education environment, behavior management, modified testing, or repeated instruction.

Both IEP and 504 accommodations require that a written document specify how a program is to be executed for the specific student. For parents, it can be an emotional, stressful, and overwhelming experience. Both special education lawyers and advocates are able to assist families in developing the document, but only a special education attorney can litigate the matter, if it becomes necessary.

Please feel free to contact me for additional information or a consultation.

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Is Aaron Hernandez guilty?

Given that both my practice and home are in the same town in which Aaron Hernandez resides (when not in prison) and also where the murder of Odin Lloyd was allegedly committed, I should not be surprised that I have been asked so many times within the last couple of days, “Why is the Aaron Hernandez verdict taking SO long? Does this mean that the jury is going to find him not guilty?”

Overall, people seem frustrated that the verdict has taken more than “10 minutes.” Popular opinion convicted Hernandez a couple of years ago; however, the actual process of trial by jury is much more complicated.

There was a substantial amount of evidence presented in Commonwealth v. Hernadez. Even the most casual follower of the case knows that there was a lot of evidence not allowed to be presented by the prosecutor during the trial. Excluded evidence was either irrelevant to proving the alleged crimes or too prejudicial given the probative value (what it is intended to prove). Even after all of those exclusions,  the jury has an enormous amount of information that they need to review and discuss during deliberations.

The Court provides instructions to the jury prior to any deliberation. All jurors are given a mini-lesson in legal proceedings and substantive law, which can be complicated and extensive. Often, such as happened in this case, the jury requires clarification on the meaning of a law.

The real work begins once a jury enters the deliberation room. First, the jury must elect a presiding juror or foreperson. Depending on the number and personalities of the jurors involved, this process can take a while to determine who should serve in this important position. In a high profile case, like Commonwealth v. Hernandez, there may be hesitation to be chosen as foreperson, due to concerns of notoriety or, potentially, safety.

The foreperson must be organized and assertive. In addition to making any needed inquiries of the Court and delivering the verdict, he or she is responsible for focusing and guiding the discussion.  The foreperson must be careful to allow everyone an opportunity to speak,  respect all opinions and viewpoints, review and follow jury instructions, examine all evidence, and discuss each alleged crime, one at a time. He or she must also organize any and all voting during the deliberations.

Voting in the jury room can occur at several times during deliberation. Some juries vote soon after entering into deliberations, but most wait until all evidence and corresponding law has been discussed and reviewed extensively. Voting can be anonymous, by written ballot, or out in the open, by verbal commitment or raising of the hand. There often multiple rounds of voting, as well as persuasive and heated discussions, prior to the verdict.

A verdict is the most common outcome of a trial. When a verdict is delivered to the Court, it means that the entire jury has voted and agreed upon the decision about whether a defendant is guilty or not-guilty. Often, the prosecutor will poll the jury, or ask each juror to separately confirm the verdict,  to assure that the reported verdict is accurate. Occasionally, a verdict cannot be reached.

Mistrials usually occur when a jury cannot agree on a verdict. If a mistrial seems likely, the Court may attempt to intervene and provide additional instruction or clarification, hoping that it will help the jury to reach a verdict.  Mistrials are fairly unusual, but often result in a new trial and with a different jury.

Is Hernandez guilty? That is not a question for me to decide (you didn’t actually think that I was going to answer that, did you?). Even if I followed the case religiously, which I did not, it would not be my decision. The jury has the tough task of deciding whether he killed Odin Lloyd. They must use evidence presented, not gut instinct, speculation, or media reports, in reaching their verdict- and it must be beyond a reasonable doubt.

As always, please feel free to contact me for additional information. Please feel free to send this newsletter to anyone who may be interested. Receipt of same is not intended to offer specific legal advise or create an attorney-client relationship.

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Driving Forces in Divorces

Before I begin the intended topic of this newsletter, I want to reflect briefly on my recent commentary about the jury process. After I sent my most recent newsletter, I probably received two (2) dozen emails and telephone calls, asking about my actual opinion regarding likelihood of a conviction for the murder of Odin Lloyd. Despite an inclination that there  would be conviction of second degree murder,  I, for obvious reasons, was not going to state that in my newsletter (and I would have been wrong anyways).

North Attleboro thrived and commanded respect, while being highlighted by national news.  Friends rallied to protect and support families living close to his residence.  The NAPD did an amazing job collecting evidence and making sure that residents continued to feel safe during the investigation. Similarly, the Bristol County District Attorney’s Office rose to the challenge of prosecuting a difficult case, despite the defendant being a known “personality.”  Ultimately, it is a very sad situation for two (2) families, both of which lost, albeit in different ways, a son, sibling, and friend, but also for a small child who may never really have a real father.

Now, its time to separate from this topic and to discuss the driving forces behind divorces.

My divorce clients are among my most captivating, because they all come to my office about to embark on a new journey. Most of my clients are ordinary people, who are just trying to navigate their way through a rough patch in their life, whether the situation was wanted, forced upon them, or driven by a mutual decision.  My clients usually have two major questions: What will happen with my children and finances?

The Court removes emotion, to the greatest extent possible, when deciding cases. Judges care most about the best interest of children, making sure that all minor children have their best interest and needs met. To the contrary, the division of marital assets is treated, in most cases, as a math problem.  In Massachusetts, marital assets will often be divided as near equally as possible, but it is not a community property state, requiring an equal division.

Division of the marital assets is defined by Massachusetts General Laws c. 208 $34.  The Court considers the following factors when dividing assets: length of the marriage, conduct of the parties during the marriage, age(s) of the parties, health of the parties, occupation(s) of the parties, income of the parties, station or lifestyle, vocational skills, employability, debts, potential for future income, and the needs of the parties.  Therefore, where conduct of the parties is only one (1) of the factors considered, it does not play as significant of a role in division of assets as commonly thought or often hoped.

I always defer to my clients on the decision of whether to file with no-fault or fault grounds. In ten (10) years, I have had only a handful of clients who want to file for a divorce with fault grounds to either “send a message” to future, significant others or for their personal satisfaction of being “right.” In my experience, it is rarely worth the extra drama or financial commitment necessary to litigate a case on fault grounds or out of distain.

Imagine that someone has just made some nasty allegations about you. How would you feel? For most people, the first reaction, regardless of whether or not the allegations are true, is to be mad. Real mad. Maybe embarrassed. Nonetheless, you would probably try to clear your name and reputation. How do you do that? You fight back with every ounce of energy. When it comes to litigation of a divorce, it raises the emotional impact on both parties and  the legal bills.

Ultimately, both no-fault and fault divorces still involve dividing assets according to Massachusetts General Laws c. 208 $34 and, while it may tip the scales in one party’s favor slightly, it rarely puts one party in a drastically different position than it would have been otherwise.

My job is to simplify the process for my clients by attempting to reduce the emotional element.   I’m not going to attempt to convince you that I don’t feel some of the pain of my clients during the process, because I certainly do, especially when there are children involved. Nonetheless, my client’s best interest, including their children and assets, are my priority.  I take that responsibility very seriously, by minimizing the amount of costly litigation necessary and protecting what remains as they start their travels on an unknown road.

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