Tuesday, December 20, 2011

Welcoming the Troops Home for the Holidays

With the War in Iraq officially over, scores of U.S. military members will be returning to the United States just in time for the holidays. While we are so happy to welcome our troops home, we must also recognize the host of issues facing our service members. The Department of Defense runs a website called MilitaryOneSource.mil which serves as a launch point for all kinds of services available to U.S. military members and their families. The website provides information and services on a wide range of issues facing service members and their families including: money management, relocation, parenting and child care as well as relationships, stress and grief, to name a few. Understanding that many of these issues are full time concerns, Military One Source operates 24 support by both phone and e-mail.
From poking around the website, one of the services I found was military subscriptions to the popular website SitterCity. SitterCity helps parents find well-qualified child care providers and babysitters in their areas. While typical memberships to parents run up to $140/year, the military offers free memberships to servicemen and women through a link on the Military One Source website.
Above all, Military One Source creates a community where members of the armed forces can find the support and help they need as they share the challenges and rewards of life in the military.

Friday, November 18, 2011

Penn State [Media] Monster

(Guest post written by Juliette Quinn, law clerk for Attorney Brian McLaughlin)

On November 5, 2011 former Penn State assistant coach Gerald A. Sandusky was arrested following a Grand Jury indictment identifying eight victims of sexual abuse.


The news is all over the sports stratosphere—turn on ESPN and you are bound to see up to the minute updates on Penn State, Joe Paterno, or Sandusky streaming along the bottom of your screen.  As analytical consumers of the media monster, we must not allow the constant attention given to the football side of the story overshadow the impact of child sexual abuse on its victims.

Every year, there are more than 80,000 reports of child sexual abuse.[1]  In a kindergarten class, four of every twenty students are likely to be sexually abused before they graduate from high school.[2]  The actual number of instances may be even greater, given children are often afraid to report the abuse and the legal procedures confirming the occurrence of an event may be difficult to overcome.

Statistics aside, the psychological effects of sexual abuse of any one child last for a lifetime.   Victims of child sexual abuse often are caught between feelings affection and loyalty for their adult abuser who gives them attention and shame stemming from the sexual activities.  Child victims may experience “fear, anxiety, depression, anger and hostility, aggression, and sexually inappropriate behavior”.[3]  As adults, victims of sexual abuse may experience reactions relating to their ability to set boundaries, anger, flashbacks, grief, guilt, trust issues, coping skills, self-esteem, and sexuality.[4]

Here are some more articles taking a child-centric view of the Penn State scandal:



If you suspect a child is being sexually abused, please take action. The following link provides information on how best to confront the situation: http://www.stopitnow.org/ohc/41.

Monday, October 31, 2011

Bringing Third Parties to Initial Consultations

I saw this great blog post on Divorce Discourse and wanted to share it:
http://divorcediscourse.com/2011/10/27/mom-consultation/

I happen to agree with most of the article, especially the premise that a third person in the room can be helpful. I find that particularly when a client is very young, having a third party is helpful for remembering dates and the nuances of the process, I just make very clear that the third party is not my client and during particular phases of the interview, I will ask them to leave the room. I also promise the third person that I will keep them updated with the progress of the case but not as to the substance of the conversations between myself and the client.
More challenging I find is the situation when someone brings in their children for an initial consultation. It is often suggested by other attorneys not to allow children in meetings, although I find it difficult to enforce such a policy since getting a babysitter can be so difficult for so many clients. Often times the child’s presence can be distracting and you are unable to ask the difficult questions. So if at all possible, I advise clients to leave their child at home or we will re-visit the difficult questions at a later point in time.
The moral of the story is, you can bring a friend, but leave your child at home.

Tuesday, September 13, 2011

New Law Mandates Increased Access to Services for those with Autism

Massachusetts became the 23rd state to pass legislation expanding health insurance coverage to children and adults with an Autism Spectrum Disorder (ASD). The law which was approved by the Governor on August 3, 2010, went into effect on January 1, 2011. With students returning to schools across the Commonwealth, it is important to explain what is and is not covered by the new law, and what schools’ obligations continue to be under the Individuals with Disabilities Education Act (IDEA).
ARICA (An Act Relative to Insurance Coverage for Autism) mandates specific private health insurance providers to cover an expanded range of services for those on the Autism Spectrum. In particular, the law requires these insurance companies to cover “medically necessary” care including: habilitative or rehabilitative care, pharmacy care, psychiatric care, psychological care and therapeutic care.  
ARICA is only applicable in Massachusetts, so it only affects Massachusetts residents who have ASD and are enrolled in private health insurance plans. It applies to most private health insurance policies but does not apply to policyholders with MassHealth /CommonHealth. You should check with your individual insurance provider to verify the effect of the new law on coverage.
While this law is a huge victory for families who have loved ones with Autism, it does not diminish a school’s need to provide a free and appropriate public education. For example if a student now receives occupational therapy outside of school due to the reduced cost, but the IEP states that the student should receive occupational therapy during the school day to meet the student’s needs, the school cannot eliminate the therapy during school hours just because the student is now receiving therapy outside of school. The school must take into account what the student’s needs are in order to succeed in school and receive a free appropriate public education. The new law does not mandate reimbursement to schools and school districts for providing these services.
Hopefully the new law will lead to students receiving increased services outside of school allowing them to be more successful as they progress through their educations.

Tuesday, August 9, 2011

Restraining Orders 101: Part 2

This is part two of Restraining Orders 101 and details the process for seeking a restraining order once it is deemed to be the right course of action.
The Process:
Once you have determined that getting a restraining order is the right step to take, it’s important to understand the process. The first step is to go to the Clerk’s office at your local courthouse and fill out an affidavit requesting the protective order. If it is a holiday, night or weekend, call the police and they will put you in touch with an on-call judge. The next step will be to present your safety concerns to a judge who will decide whether a restraining order is appropriate in your situation. If so, he or she will provide you with a physical copy of the restraining order and the other will be sent to the police. It is important to note that this initial protective order is only TEMPORARY, and will last 10 days. The police will take care of serving the abuser with the restraining order. This means they will go to the abuser’s house and physically tell him or her that an order has been filed. If you are living with your abuser, the police can help you by coming to your house and removing the abuser from the premises.  Before 10 days has elapsed, you will need to attend a hearing which allows the abuser to prevent his or her side of the story. Keep in mind, this part of the process can be very difficult so it’s a good idea to have an advocate or friend accompany you to the hearing. If the permanent restraining order is granted it can last for up to a year; violation of the order is a crime and if that occurs, call the police immediately.
This procedure is quite complicated and we recommend hiring a lawyer to help you through the process. Feel free to contact Attorney Brian McLaughlin to set up an appointment if you are considering a restraining order.
For more information click here.  

Monday, July 25, 2011

Navigating Changes in Alimony Over Time

The purpose of alimony “is to avoid any unfair economic consequences of a divorce, even after property is divided and child support, if any, is awarded.”[1] Two Massachusetts cases illustrate how alimony changes over time, particularly when one spouse reaches retirement age.
In Pierce v. Pierce (SJC-10381), Rudolph Pierce, the former husband, had been paying $110,000 annually in alimony while earning approximately $450,000 each year as a partner in the law firm where he worked. At the age of 65, Pierce voluntarily retired and filed a motion to eliminate the alimony he was paying to his ex-wife Carniece due to his retirement. At the time of his retirement, Rudolph Pierce had remarried and his second wife earned $125,000 annually. In this case, the judge ruled that a reduction of alimony to $42,000 a year was fair for all parties involved. On appeal Rudolph Pierce again asked the court to eliminate his alimony obligation. The appeals court however found that while reaching retirement age is certainly a factor to consider in alimony judgments, the opposing party’s financial situation is also important to weigh when considering an alimony modification. In this case Carniece Pierce had recently become unemployed, had not received any severance, was not remarried, and at age 64, was not receiving Social Security benefits.  Furthermore, the judge concluded that while Rudolph was able to maintain the same standard of living that he had enjoyed pre-retirement, Carniece would not be able to maintain that standard without Rudolph’s alimony support. The judge also concluded that Rudolph would be able to afford the reduced alimony payments of $42,000 annually.
In contrast, in the case of Ross v. Ross (10-P-1130), the judge allowed that upon Adam Ross’ retirement, he no longer needed to pay alimony. In this case the judge allows that the defendant’s good faith retirement at the age of 65 would prevent him from being able to pay alimony due to his decreased income. Furthermore the judge demonstrates how Joan Ross’ need for alimony has diminished in the time since their divorce. Going back to the definition of alimony, intended to level the playing field, the judge found that in the 10 years since the divorce, the parties children have become emancipated, Joan can be self-supporting based on her skills, education and experience, and she does not need alimony to maintain her lifestyle. Another point of note is that at the time of the appeal, Adam was nearly 66 while Joan at almost 14 years his junior has more earning potential through employment or investments.
These two cases illustrate how the former spouse’s current economic situation remains a central factor when calculating alimony, even after one party reaches retirement age.


[1] http://legal-dictionary.thefreedictionary.com/alimony

Tuesday, May 24, 2011

Run to Home Base

On Sunday May 22 I had a chance to compete in my very first road race. Using my bike that I pedal with my arms, I raced the 5.6 miles in a little over an hour finishing over home plate at Fenway Park. The Run to Home Base is an annual event that seeks to raise money for veterans suffering from traumatic brain injuries or combat stress disorders. These invisible wounds are just as detrimental to veterans, but often times are stigmatized or receive less attention than physical wounds. The Home Base Program also provides support and treatment to families of veterans who are coping with how to best care for an injured loved on. This year the race attracted over 2,000 runners and raised $2.6 million for veterans and their loved ones in the New England area. It was very gratifying to make my road race debut supporting such a worthwhile cause!
Brian crossing the finish line in Fenway Park. Courtesy of the Boston Globe.

Read the full article here

Monday, May 23, 2011

Postnuptial Agreements

There are three different types of marital agreements, each requiring a different standard of review by a judge. The three are: prenuptial agreements, postnuptial agreements and separation (divorce) agreements. This blog post will focus on postnuptial agreements.

What is a postnuptial agreement?
A postnuptial agreement is a contract between two spouses. This agreement is different than a pre-nuptial agreement in that it is signed during the marriage. A postnuptial agreement is entered into assuming that there will be an ongoing, viable marriage.

There are two basic rules or principals that should be followed to safeguard your postnuptial agreement: (1) full and fair disclosure; and (2) separate and independent counsel.
What should you consider when drafting a postnuptial?
In general, you will want to consider and discuss the following with your spouse:
  • Discuss all the assets and debts of your relationship as well as future income opportunities.
  • Be open and honest about your assumptions and expectations of how property would be handled in the event of death or divorce.
  • Draw up and sign the agreement with the help of two lawyers. It is critical that you are each represented independently to maintain the legality of the contract.
  • Revisit the contract periodically, especially if your lifestyle or financial status changes drastically. If you move to a different state, check to make sure the laws or legal precedents don't affect the status of your contract.
What should be included in a postnuptial?
*This is not an exhaustive list and you should obtain separate independent counsel before drafting or signing any agreement or contract.
  • List all assets, liabilities, income, and expectations of gifts and inheritances.
  • Describe how post-marital debts will be paid.
  • Decide who, or if both of you, will own the marital residence and secondary homes in the event of death or divorce.
  • Specify the status of gifts, inheritances, and trusts either spouse receives or benefits from, whether before or after marriage.
  • Clarify what will happen to each type of property, whether jointly or individually owned, such as real estate, artwork and jewelry.
  • Figure out alimony, maintenance, or spousal support, or provide for a waiver or property settlement instead of support (to the extent allowable by law).
  • Detail death benefits, stating what you will provide for in your will. 

What about postnuptial agreements in Massachusetts?
The Supreme Judicial Court (SJC) found that postnuptial agreements in Massachusetts are enforceable if certain conditions are met. These conditions, outlined by the court, are as follows:
  • The opportunity for each party to obtain separate independent legal counsel of their own choosing;
  • No fraud or coercion in obtaining the agreement;
  • All assets fully disclosed by each party before the agreement was executed;
  • Each party knowingly waives in writing the right to a judicial equitable division of marital property and assets in the event of divorce;
  • The terms of agreement are fair and reasonable at the time of execution and at the time of divorce.

Tuesday, May 17, 2011

Restraining Orders 101: Part 1

This is a two part series about the Restraining Order process in Massachusetts. Part 1 will give information if you are considering requesting a restraining order while Part 2 will detail the process of obtaining the protective order. 

Restraining Orders 101
If you or a loved one is experiencing domestic violence, a restraining order may be a valuable tool to keep you safe. If you are in immediate danger, call the police. Restraining orders, or 209A protective orders, are court orders that prohibit an abuser from coming within a certain distance of you or contacting you over the phone, e-mail, etc. and are thus designed to prevent further abuse. When you file for a restraining order, it is a civil claim. This means that the person you are accusing will not be sent to jail or fined if the restraining order is issued. However, if the abuser violates the terms of the restraining order, it does become a criminal issue, meaning they could face either fines or jail time.
In Massachusetts there are several important things to know when considering a restraining order. First of all, only certain types of relationships are eligible for restraining order coverage. These relationships are:
§  A substantive dating relationship
§  Living together in the same household
§  Engaged or married
§  Have a child together
§  Related by blood or marriage
When you appear before a judge, the judge will only grant the restraining order if the relationship falls into one of the above categories and is therefore covered by law and if he or she believes there is “a substantial likelihood of immediate danger of abuse.” If a restraining order is granted, the abuser will need to surrender all guns and gun licenses to the police. This rule enacted by the Lautenberg Amendment of 1996 affects all people subject to restraining orders including those with who carry guns for their occupations such as police officers or military personnel.

Monday, May 9, 2011

What Soldiers Need To Know about USERRA Part III

A.   Overview of Part I:

  •  Notice To Employers – You have an obligation under the law to provide advance written or verbal notice to your employers for all military duty (exceptions apply).
  •   Important Time Considerations – You must adhere to strict time lines when applying for reemployment or reporting back to your civilian job (based on the time you spent on duty).
B.    Overview of Part II:
  • What Circumstances May Disqualify You From Asserting USERRA? - 1) Dishonorable and/or bad conduct discharge; 2) “Other than honorable” discharge (each branch of the military has specific rules governing this type of discharge); 3) Dismissal of a commissioned officer via court martial or a Presidential order in time of war (see 10 U.S.C. 1161(a)); and 4) Dropped from the rolls by the President for being absent without authority for more than three (3) months or imprisonment by a civilian court (see 10 U.S.C. 1161(b)).  
  • Documentation Upon Return - 1) Your timely application for reemployment; 2) You have not exceeded the five (5) year service limitation; and 3) Your separation from service was other than disqualifying (see 38 U.S.C. 4304). 
C.    Part III:
       Although you're re-employment should be safe and secure if you follow the rules, your employer does have defenses to rehiring you. The defenses your employer may utilize are called affirmative defenses. This means that the employer has the burden of proving them by a preponderance of the evidence (i.e. anything over 50%). Two affirmative defenses your employer may utilize are: 
  1. Changed Circumstances: Re-employment may be excused if the employer's circumstances have changed so that re-employment of the service member would be impossible or unreasonable. An example of this scenario would be a reduction-in-force that would have included the service member.
  2. Undue Hardship: Employers are excused for making any effort to qualify the returning service member or from accommodating individuals with service-related disabilities only when doing so would be of such difficulty or expense as to cause "undue hardship" on the employer.
       If you have any questions or concerns about your re-employment or lack thereof you will find information and technical assistance provided by the Veteran's Employment and Training Service (VETS) of the Department of Labor (see VETS). VETS investigates complaints and attempts to resolve them. Filing of complaints with VETS is entirely optional. You may therefore freely choose to pursue a claim with private counsel.  

New Anti-Bullying Statute in Massachusetts

The recent news about sentencing in the tragic case of Phoebe Prince throws the problem of bullying in our nation’s schools back in to the spotlight. Prince was 15 years old when she committed suicide in January of 2010 in South Hadley, MA following relentless bullying by her peers. Her death has elevated awareness of bullying and has spurred legislative changes around the country.
Massachusetts passed a new anti-bullying statute in May 2010 in direct response to the incident. St.2010, c.92 titled Bullying in Schools contains several important provisions designed to protect students from bullying and harassment. The law specifically addresses cyber-bullying a new type of bullying in today’s digital world. With Facebook, cell phones and other forms of electronic communication children who were once solely bullied while at school are now subject to a relentless wave of harassment following them when they leave school at the end of the day. The law also requires schools to create a plan to implement programs both to prevent bullying and provide successful intervention in consultation should incidents of bullying come to light.
Bullying is of particular concern to children with disabilities since they are already in a vulnerable state. According to a recent survey by the Massachusetts Advocates for Children, 90% of parents with autistic children reported that their child had been the target of bullying. In response to this concern, the Department of Special Education has issued a Technical Advisory with guidelines and resources concerning bullying and special needs children. The Advisory places particular emphasis on addressing bullying prevention in your child’s IEP and ensuring that your child has a safe person to go to if they are being bullied. The IEP should have a section for educational professionals to comment on whether your child seems withdrawn or is not socializing appropriately because of bullying. This portion of the IEP should also provide tools for the child to use themselves when confronted with bullying.
Read the full Massachsetts Statute here


Read the Technical Advisory from the Department of Special Education here

Monday, April 4, 2011

Divorce Process

This blog will explain the steps in a divorce, and what you will need to provide an attorney.  As you navigate through the process,  the first document you will need to bring is your original marriage certificate.  Sometimes clients want to keep this for their records or just simply to remember a time in their life.  The court however needs the original document.  The divorce will not be able to proceed unless the original is filed with the court. The second set of documents you will need are three years of your tax returns.  These forms can include 1099s 1098s and W-2's.  You also need three most current pay stubs from your employer.  It should be noted there are no gotcha moments in family law.  Everything is about disclosure and the best interest of the child.

When you get to my office (www.bmjr law.com), I will have the necessary forms for you to fillout. These forms include the Complaint for Divorce, Affidavit Disclosing Care and Custody, Statistical Report, and finally the Military Affidavit.  If applicable, you may fill out an Affidavit of Indigency which waives the court costs of $215.  The above-mentioned forms tell the court information about you, such as whether a spouse is in the military or if there are any care and custody proceedings already pending within the court system.

Once the divorce paperwork is filed, you should attend the parent education class, which is a requirement under Massachusetts law, if the parties have a minor child.  It is important that you attend this class.  Otherwise, the divorce will not proceed.  The parent education class seeks to provide guidance for children as their family structures are changing.

Once you've completed the parent education class you should begin working on the financial statement.  The financial statement breaks down your expenses in your life to determine how much child support and/or alimony you should receive.  I heard a judge recently say at a conference that both child support and/or alimony should not exceed 1/3 of the defendants income. Typically the longer the marriage, the more likely you will receive alimony. 

The opposing party has 20 days to respond to the complaint for divorce.  Once the 20 days have past I can file for a pretrial conference where the judge will attempt to settle the case or determine whether the case should go to trial.  Prior to the pretrial conference a four-way meeting must occur.  The four-way meeting is to allow all parties to discuss the issues in the case to determine which issues they agree or disagree on.  It is important to approach the pretrial conference with an open mind and a willingness to compromise.  This may be very difficult in some cases I realize.  At the pretrial conference the judge will determine the status of discovery and set a trial date.  If needed, he may also direct the parties to a probation officer to see if an agreement can be reached if the case is appropriate.  The vast majority of divorce cases settle during the pretrial phase.  Trials usually are over custody issues and can be painful for all sides.  It is important to remember that the best interest of the child is what's most important.  I hope you found this blog to be helpful in outlining the basic process of divorce.

Sunday, March 13, 2011

What Soldiers Need To Know about USERRA Part II

A.  Overview of Part I:
 
Notice To Employers – You have an obligation under the law to provide advance written or verbal notice to your employers for all military duty (exceptions apply).

Important Time Considerations – You must adhere to strict time lines when applying for reemployment or reporting back to your civilian job (based on the time you spent on duty).

B.   What Circumstances May Disqualify You from Asserting USERRA?
There are four (4) circumstances that would disqualify you from asserting your rights under USERRA. You should commit these to memory to avoid any unforeseen disqualifying situations. They are as follows:
1)    Dishonorable and/or bad conduct discharge;
2)   “Other than honorable” discharge (each branch of the military has sp ecific rules governing this
type of discharge);
3)    Dismissal of a commissioned officer via court martial or a Presidential order in time of war (see 10 U.S.C. 1161(a)); and
4)    Dropped from the rolls by the President for being absent without authority for more than three (3) months or imprisonment by a civilian court (see 10 U.S.C. 1161(b)). Losing your right to assert USERRA upon returning to civilian life can have a devastating effect on the rest of your life and that of your family. Therefore, as a servicemember, you should be well aware of these possibilities before and during your service.

C.   Documentation Upon Return
Under USERRA, your employer has rights also. You would be misinformed if you believed USERRA protects you and only you. For example, if an employee has been absent for a period of service longer than thirty-one (31) days an employer has the right to request documentation showing:
1)    Your timely application for reemployment;
2)    You have not exceeded the five (5) year service limitation; and
3)    Your separation from service was other than disqualifying (see 38 U.S.C. 4304). Furthermore, if this documentation does not comply with USERRA because it is not readily available or simply does not exist, your employer MUST reemploy you. However, if you have been reemployed and this documentation later becomes available showing you have violated the requirements, your employer may terminate you. If you happen to be terminated, any benefits you may have been granted will also come to an end.

As you can see, you have an impressive amount of responsibility when it comes to asserting your rights under USERRA. It is imperative that you learn and understand this statute and its procedures.
Stay tuned for Part III:
A.   Your Position Upon Reemployment
B.    Disabilities Incurred or Aggravated While In Service
C.   Employer’s Defenses to Reemployment

Friday, February 18, 2011

What Soldiers Need To Know About USERRA

It doesn’t matter whether you are just enlisted, already in action or waiting for another tour of duty yet it is imperative that you understand and utilize the broad federal protection under USERRA. This law is a federal statute that protects civilian job rights and benefits for veterans and members of the Reserves.

There are many factors about this law that are important; too many for one blog. I will therefore make this a 3 part series on what I consider a very important statute.

A. Notice To Employers
#160; The first factor you should understand is the obligation you have under the law to provide advance written or verbal notice to your employers for all military duty. Fortunately, there are exceptions. You will still have protection if giving notice to your employer is 1) impossible, 2) unreasonable, or 3) precluded by military necessity. For example, being deployed to Iraq or any other war zone would satisfy these exceptions. However, if an exception doesn’t apply, you should provide notice as far in advance as is reasonable under your individual circumstances. Additionally, you are allowed to use accrued vacation or annual leave while performing your duty but you are not required to.

B. Important Time Considerations
Under USERRA, there are also strict time lines you must adhere to when applying for reemployment or reporting back to your job. The period you have to apply for reemployment or report back to work after service is based on the time you spent on duty. You should commit these to memory so you can take advantage of your statutory rights.
  • Service of less than 31 days: You must return at the beginning of the next regularly scheduled work period on the first full day after release from service. You may also take into consideration safe travel back home and an 8 hour night of sleep.   
  • Service of more than 30 days but less than 181 days: You must submit an application for reemployment within 14 days of release from service.
  • Service of more than 180 days: Your application for reemployment must be submitted within 90 days of release from service.
I hope this was helpful in getting you interested in finding out more about your rights and protections under USERRA.

Stay tuned for Part II of our 3 part series. You can find out more information about your rights by visiting the Veterans' Employment and Training Service(VETS) website.

Friday, February 4, 2011

Mass Alimony Reform Bill A Light At The End of The Tunnel

The Mass Alimony Reform Bill was introduced on January 18, 2011 by Senator Gale D. Candaras (D – Wilbraham) and Representative John D. Fernandes (D – Milford). Some may disagree with Candaras and Fernandes but their respective arguments are tough to deny... Candaras argues that the "...Alimony Reform legislation will bring clarity and make more equitable a law in need of revision. It is intended to promote marriage, foster self sufficiency and encourage all individuals to plan for their retirement... ." The final Bill did however take concessions from all sides. As Fernandes explains, "..[t]his bill, borne of a collaborative effort of practitioners, jurists and those advocates who have lived the alimony experience provides the change that is needed. I am anxious to see this legislation move forward to passage.”

This legislation proposes sweeping changes to our antiquated system of awarding and modifying alimony. However, not everyone is happy with the new legislation and the changes it may bring to alimony laws in Massachusetts. The current statute, MGL Chapter 208 Section 34, gives Judges broad discretion in awarding alimony. This discretion in and of itself creates an atmosphere with no direction and drives many cases to trial that may have been settled otherwise. Some say the statute’s vagueness also encourages litigation and discourages people from getting married.

On the other hand, the new system (if enacted) would give much needed guidance and direction to judges, attorneys and litigants. Below is a list of the key reforms proposed under the new bill:
  • Providing separate alimony categories with clear definitions and set durational limits (e.g. general term alimony, rehabilitative alimony, reimbursement alimony, and transitional alimony).
  • Termination of General Alimony at retirement - Alimony terminates upon payor attaining the full retirement age per the old-age retirement benefit under Social Security.
  • Addressing cohabitation - The cohabitation of the recipient spouse with another person for a continuous period of at least three months may be cause for suspension, reduction or termination of alimony.
  • Modifying factors considered in an Alimony Order & percentage of need.
For more information on the history of alimony and the proposed changes visit: http://alimonyreform2ndwives.blogspot.com/ and http://massalimonyreform.org/. For more information call the Law Offices of  Brian J. McLaughlin ESQ. 857-241-3689.

Tuesday, February 1, 2011

To Be Material, or Not to Be?

This blog will examine what steps need to be taken to file for and prove a material change in circumstance. Part two of this blog will examine the new legislation concerning alimony and its impacts.

First a person must file a complaint alleging a material change in circumstance. The material change in circumstance must be something new that has not been brought to the court's attention during the divorce proceeding. Either party may file for a change in circumstance after the divorce has been granted. If the divorce was settled by an agreement, the agreement must have a merger clause merging the agreement into the final divorce judgment. The merger clause allows for the modification standard to be used rather than a more difficult countervailing equity standard. Some obvious examples of material change in circumstance are a job loss or ill health. These must be explained in the complaint and supported by evidence.

However, there are two different types of material changes in circumstance that are not as obvious as ill health or job loss. First is the situation that involves children. For example, the child has been living with his/her mom and now live with the father. Here, the change in circumstance also deals with the child and not strictly financial issues. Now, there's an additional step to the analysis. The court must now take into account the best interest of the child when considering a material change in circumstance.

The second situation to be aware of is whether either spouse has a new cohabitant. Under the current law in MA, the court considers this a material change in circumstance. Now, the non-cohabiting spouse is entitled to file for a modification of his/her alimony payment.

Furthermore, under current MA law, if one of the spouses remarries, the court may take into account the new spouses income when modifying a previous alimony judgment. This situation has helped form several groups such as the 2nd Wives Club and Mass. Alimony Reform whom have both participated in presenting the Alimony Reform Bill to the Mass. Legislature just last month.   

You can consult Brian McLaughlin for any of your modification needs at www.bmjrlaw.com

Monday, January 3, 2011

Having a Lawyer While Filing for Unemployment Is Key

While filing for unemployment you should have a lawyer  to represent your interests and to familiarize you with the process. According to recent research, you statistically have a better chance of success on your claim if represented by a lawyer. The attorney can also provide you with phone numbers in order to help guide you around the Department of Unemployment Assistance. This is critical advice as the national unemployment rate is around 10%.

Here are some general tips for your unemployment hearing if you cannot obtain an advocate: 1) dress professionally; 2) keep your emotions in check; 3) provide documentation that is relevant to your case; and 4) answer only the question that is asked.

Dressing Professionally: Believe it or not, dressing professionally makes all the difference in the world. It says to the examiner that you take this matter seriously and sets the hearing in the right direction.

Keeping Your Emotions in Check: Someone's employment is part of their identity, particularly those who have worked for the same employer for a long time. In most cases, we spend more time at our job than with our own families. Hence, losing one's job can be both emotionally and financially devastating. Therefore, it is important to keep your emotions in check the day of the hearing. This may be the first time you see your employer since the last day you were employed at the company. The employer may have placed misrepresentations in your Department of Unemployment Assistance file. It is important to keep your eye on the prize and remember it is your benefits you are seeking, and not vengeance against your employer.

Providing Documents That Are Relevant to Your Case: Ultimately, it is your employer's word against yours and the DUA Examiner must make the determination of whether you receive your benefits. Therefore, it is critical to supplement your testimony with documentation.

Only Answer the Question That Is Asked: This may seem self-explanatory, but you only have, at the most, an hour with the examiner and most hearings are finished in far less time. Therefore, the examiner is looking for very specific information, and claimants tend not to answer directly the question that is asked. It is important to answer the questions that are asked directly because it will increase your credibility with the examiner. Do not worry; you will have an opportunity to speak on your own behalf before the hearing is closed.

Hopefully, with these helpful hints, your unemployment hearing will go smoothy and garner the correct result.