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The Column That I Didn’t Expect to Write

People who know me know well are going to think it is hilarious that I am writing this newsletter. I’m generally not a big fan of reality television, with the only exception being Shark Tank, which I loved even before a friend was on it last year, but even moreso since. However, sometimes reality personalities become part of mainstream news and discussion.

Lamar Odom, former NBA player and reality personality, has been all over the news lately. I know very little about him or his family, but I have been asked several times, within the last week, to explain how divorce papers can be signed, yet they are not divorced and his Wife can still make health care decisions on his behalf. To the best of my knowledge, California has jurisdiction over their marriage. I am not a California attorney.

Massachusetts requires several events to occur prior to granting a divorce. A Complaint for Divorce initiates the process; it is a document that is filed with the Court, either by one party or jointly.

Parties must exchange financial information. Both spouses present a financial statement, which summarizes expenses, assets, income, and liability. They also provide three (3) years of taxes, investments, and bank statements. Often the information is the same for both spouses, but not always. Sometimes, more information is requested, especially if one spouse is self employed.

Once financial disclosures have been made, the bulk of negotiations begin. Parties can often come to an agreement about how to divide marital assets and liabilities, whether alimony is necessary, as well as the care and custody of minor children. If the parties cannot agree on one or all issues, court intervention is available. If the parties can agree on the issues, a Separation Agreement is created and signed by both spouses.

My limited understanding is that the Kardashian-Odom process is or was at this point in the process. For that reason, they are still married and marital privileges, such as decision making power, are still in effect.

Parties need to actually present their Separation Agreement to the Court prior to obtaining a divorce. A judge will review the document for fairness and may ask the parties some questions. If the judge determines the document to be fair and entered into without coercion or pressure, a Judgment of Divorce is ordered. Most people feel as though they are divorced at this point, but they are not until a Judgment of Divorce Nisi is entered.

Massachusetts has a Nisi period which lasts for 90 days. The intent of the statute is to allow the parties to cool off and reconsider reconciliation. In most cases, this period is unremarkable and the parties become divorced.

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Safety in an Unsafe Relationship

Domestic abuse has been a topic amongst my family law clients long before Ray Rice renewed it as a nationals conversation. I often have consultations with potential clients who come to me for a “simple” divorce and proceed to tell me horrific stories of abuse. For some clients, it’s physical abuse, but for others, it is emotional, verbal, or financial abuse. The individuals are from all races, religions, social economic status, and genders.

My first inquiry in these situations is always related to imminent fear of bodily injury. If such afar exists, a Restraining Order (“209a”) may be appropriate. A 209a is a Court Order that states what parties may or may not do. Typical terms include, but are not limited to, an abuser not contacting a victim, or the friends and family of the victim, by phone, in person, by email, or text; abuser must remain a specific distance from the home and workplace of the victim, and the abuser may not possess any weapons.

Laws regarding 209a vary from state to state. In Massachusetts, the District and Probate & Family Courts allow for walk in requests and have jurisdiction to order a 209a where appropriate. Temporary Orders are usually given for a short period, often ten (10) days, but all Orders have the potential to be extended or made permanent.

What happens to my potential clients? Some never call again and I always hope that they have retained alternative counsel, not become a statistic. Some return months or years later, saying, “I can’t be a victim anymore” or “I have to do this for my child.” It takes courage to leave, because the scariest time for a victim is often the six (6) months following. They are often still terrified of their abusers. They are often isolated and broke. They often have a long history of police visits to their home. They are almost always afraid of what will happen next.

If you or someone that you know is in abusive relationship, please encourage them to seek legal assistance or to call RESPOND @ 617 623-5900 or click here

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Text, Tinder, and Twitter….oh my….

Like so many New Englanders, I am excited about the Patriots’ recent Super Bowl win. I actually thought of how to integrate the win into my monthly newsletter. Deflategate was an obvious topic, but it’s been over discussed by every reporter and person in the country. Then, out of nowhere, a photo of fan favorite Julian Edelman started spreading quicker than a Gronk spike. I am not going to speculate whether the photograph was authentic or ponder the ethical issues involved with posting it, but it did get me thinking about the exposure that we all have in our digitally obsessed world.

So many people innocently put information online.We all  post funny stories, cartoons, and photos. We think that our social media  accounts are protected, because we have customized privacy settings and security software. We see the photos that are circulated on Facebook, trying to provide a lesson to young students about how quickly people can “borrow” your content, but think our photos are safe, because of those protections.

The digital world offers less protection than most of us feel comfortable admitting.  Sometimes, it results from the innocent time when your friend copied your photo from Twitter,  to show someone else how cute your children are,  but, somehow, the photo travels into the wrong hands. What happens when a hacker or child perpetrator gets hold of the photo? How would you react if the photo is used for advertising without your knowledge or consent?

Often, potential employers actively search online for “dirt” on perspective employees. For every photo or statement that an employer examines, someone  is interpreting  what they think it says about the character and personality  of  the potential employee. How does a hiring manager react when all they find are photos of you with cocktails in your hand or constant posting during traditional work hours? Do they interpret it differently depending on your work history?

What is rarely discussed  is the privacy of electronic messaging. Many people realize that a text, instant message, or email can be forwarded or copied; however, what a lot of people don’t realize is that the contents of the text, instant message, or email can be found long after it is “deleted.”

In my world, everything is potential evidence. Photos, text messages,  and social media  posts can be used to prove my client’s case or discredit the other side’s argument. Your text and emails are proof of what you say to someone else. As the often quoted Miranda Rights suggest, “anything you say,  can and will be used against you,” under Massachusetts Rules of Evidence Section 901

When deciding if electronic evidence can be used in a case, the Court considers five (5) factors:

  1. Is the electronic evidence relevant to the case?  If you are getting a divorce and your spouse is claiming infidelity, a photo posted online or text, of you with a friend at a Red Sox game,  could be relevant if your spouse suspects that the other person is your new partner.  Moreover, mere membership or profile on a dating website, such as Tinder,  could support that you are unfaithful (or trying to be).
  2. Can it pass the test of authenticity?  If a witness confirms that the evidence is real and accurate, it will likely be allowed to either by the Court to support or discredit your case  Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359 (2014).If someone, who has first hand or expert knowledge, testifies that it was taken on April 10,2014,  at the Red Sox/ Yankees game at Fenway, their statement will likely authenticate the photo as real and accurate.
  3. Is it hearsay? When information is received from other people that cannot be adequately confirmed, it is hearsay. Unless an exception  to the hearsay rule applies, the information cannot be used as evidence. If you heard from Alex that Jeff committed a crime, it is probably hearsay; however, if you witness the crime being committed, your description of the event is not hearsay.
  4. Is the electronic evidence the “best evidence?” If the original document is no longer available, but a copy is, it will likely be allowed by the Judge. If a text conversation is deleted,  but somebody saved a screen shot, a judge would likely accept a copy of it as best evidence.
  5. Is the probative value of the electronic evidence outweighed by unfair prejudice?  If the evidence makes a reasonable person wonder “who DOES  that,” it is likely prejudicial.  If you are engaged in a child custody dispute, where safety is an issue, a text photo of you, happily playing on the swings with your delightful child, is usually wonderful and suggests good parenting. If the photo is of you, with your five year old child,  at a shooting range and the child is firing a weapon,  it would likely cause an intense reaction from most people; however, that prejudice would be outweighed by value of what the  photo is likely being used to prove, such as recklessness.

What should this mean to you? Be careful of what you put online; those online rants about your job or significant other could be a problem later and in an unplanned way. Be careful of how you appear in photos; perspective employers understand that you like to have fun, but do not want to hire someone who is irresponsible. Be careful of what you write in a text, email, or instant message; the words that you write are powerful and speak volumes about who you are, what you do, and how you think.

As always, please feel free to contact me for additional information or a consultation. 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.

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.

Divorce Before Marriage?

Can you be divorced without being married?

“First comes love;
Then comes marriage;
Then come Little Munchkins in the baby carriage!”

Has anyone ever noticed that divorce was not mentioned in that nursery rhyme? Perhaps it wasn’t included, because divorce wasn’t as common when the song was written. Perhaps it wasn’t included, because we would all rather think optimistically about marriage and family. Perhaps I just spend a lot of time working on divorce cases, so I think about these things in my “spare” time.

Historically, you have needed to be married in order to actually GET divorced. It’s not totally true now. I can almost see you shaking your head, re-reading that last sentence, thinking I’m crazy, and wondering, “How can that be?”

Same sex couples have had the freedom of marital rights and privileges in the Commonwealth of Massachusetts for over ten years, Goodridge v. Department of Public Health, 440 Mass. 309 (2003).   When Massachusetts started to conduct same sex weddings, many couples planned destination weddings within the Commonwealth. Similarly, same sex couples have flocked to the many other states that now conduct such unions.

Thirty seven states currently allow same sex marriages. If you get married in a state that allows marriage, you can get divorced in that state or in any other state that allows for same sex marriage. Regardless of whether the spouses are traditional or same sex, the same laws and procedures are applied in Massachusetts, under MGL c. 207, and similarly in the other states.

It gets a bit more confusing and complicated if the state in which you reside does not currently allow same sex marriage. Often, a conflict of laws occurs if a divorce is sought. For a state that does not recognize same sex marriage, it is, theoretically, impossible to allow the parties to divorce. Some states are currently allowing parties to file for a divorce, even if they would not otherwise recognize the marriage; however, when the state will not allow the parties to divorce in the state, the couple may either seek a divorce in the jurisdiction in which they were married or challenge the constitutionality of the same sex marriage in that jurisdiction.

The United States Supreme Court is in the process of hearing and deciding several same sex marriage cases. A favorable outcome will bring the freedom to marry nationwide, and, by default, the same would be true for potential divorces. The Supreme Court has already held that the Defense of Marriage Act of 1996 (“DOMA”), Section 3 was unconstitutional, and that all loving and committed couples, heterosexual or homosexual, who marry deserve equal legal respect and treatment, Windsor v. United States, 133 S.Ct. 2675 (2013). Accordingly, it would be surprising if they did not continue to expand on the rights of same sex couples in future rulings.

Regardless of whether you believe in same sex marriage, things are changing and they are happening quickly. Given the current composition of the Supreme Court and the trend of the country, the process should be interesting to watch. As things continue to change or if you have questions, please feel free to contact my office and refer to either www.glad.org or www.supremecourt.gov/opinions

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.