2015 has been a landmark year of growth for my practice. As we end this month focused on giving thanks, I want to say “Thank You” to some special people.
To my clients, past, present, and future: Working together has been my pleasure. I hope that working together has helped you to move forward in your life in a positive way, whether it be as newly single, recently married, buying or selling your home, or protecting your assets for your family;
To my friends, family, and colleagues that have referred cases to me: I appreciate your trust and confidence in me;
To my colleagues who are opposing counsel: I enjoy a good sparing session, but especially when it is with someone who makes an argument with integrity;
To my colleagues who allow me to brainstorm with them: A solo practitioner without a sounding board would not be nearly as effective;
To my friends and colleagues in real estate (lenders, agents, everyone at my Title company,and other professionals): I am so excited to keeping building our relationship and providing amazing service to our clients;
To my friend, Erin Sweeney, for designing a new website for me. I can’t wait to launch it soon and for everyone to see her GORGEOUS work;
To the readers of this newsletter: I appreciate that you take the time to open and read what I’ve written. Your feedback is so helpful and keeps me motivated; and
To a good friend and colleague that I want to call out by name, but who would be mortified if I did: THANK YOU for your inspiration and support this year. From our first conversation at school to Box Seats to late phone calls and emails, your graciousness and knowledge is much appreciated.
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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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
Have you ever purchased a house? If so, you know how stressful it is to have last minute adjustments made to the amount that you must pay at the time of closing. Effective on October 3, 2015, the Consumer Financial Protection Bureau has instituted changes which should make the process less stressful. Buyers should expect the changes to positively effect future closings with two (2) major changes:
Providing Buyers with full disclosure, by postal mail or email, usually from the lender at least three (3) days prior to closing (with additional days allotted for mailing and receipt), thereby eliminating surprises and providing an opportunity to ask questions; and
Eliminating excessive documents by using two (2) easy to understand forms, the Loan Estimate and Closing Disclosure.
Along with Residential Mortgages Services, of North Attleboro, and Old Republic Title Insurance, I am sponsoring a free continuing education seminar for real estate agents on these changes, on October 26, 2015. If you are an agent or know someone who might be interested, please contact me for more information and to register.
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:
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).
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.
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.
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.
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.
Disclaimer: The material contained in this website does not constitute legal advice or a legal opinion as to any particular matter. Nor is it intended to create an attorney-client, business or professional relationship. You should not rely on the information contained in this website without first speaking with an attorney. No claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this website are made. This material may be considered advertising under the rules of the Supreme Judicial Court of Massachusetts.