shelter legal services spotlight

please check out my most recent publication in the BBA family law newsletter on my work with shelter legal services http://www.bostonbar.org/sections/family-law/family-law-newsletter/2012/11/08/family-law-newsletter-fall-2012-pro-bono-spotlight

Understanding the Divorce Nisi Period

This is a blog that I found written by Kelsey and Trask, P.C. that explains the nisi waiting period for a divorce in Massachusetts. I am posting it because it is written clearly and is easy to understand.

http://kelseytrask.blogspot.com/2011/02/what-is-purpose-of-divorce-nisi-waiting.html

Even NFL Players Have Trouble Paying Child Support

Former NFL football player, Terrell Owens, reached an agreement on July 19, 2012 to resolve his back child support. Prior to the agreement, he was facing a threat of contempt. He is paying some $5,000 a month in child support. In Massachusetts, the standard of contempt is defiance of a clear and unequivocal order and child support may not be modified retroactively. A debtor must pay their back arrearages. This is done by adding 25% onto whatever the child support guidelines say. Child support issues are a common problem in today's recessionary economy for folks. Hope this blog helps shed some light on this issue.

Click here for the ESPN article

Fourth of July event

Delighted to celebrate the SLS Fourth of July event, where we raised $16,000 for Shelter Legal Services. Their mission is to provide litigation services to homeless and low-income veterans. I want to thank my fellow board members and the staff for all their help in making the event such a success. Looking forward to doing it again next year!

For more information on Shelter Legal Services, please visit their website at http://www.shelterlegalservices.org/

Recent family law decisions

Commonwealth v. Washington W (2012)

The Commonwealth appeals from orders of a judge In the Juvenile Court dismissing two youthful offender indictments charging the juvenile with statutory rape. The judge ordered the dismissal after finding that the juvenile had suffered presumptive and actual prejudice from the "Commonwealth's willful and repeated failure to comply with discovery orders." We affirm the judge’s dismissal of the two indictments.

Minor child complained of rape by another minor child with Asperger’s. The defendant was charged with 2 counts of statutory rape and 2 counts of indecent assault and battery, both of which occurred about a year apart. The defendant had filed for Norfolk statistical reports, but the prosecution responded that it’s overly burdensome .The court citing a recent decision ordering Norfolk to comply with the discovery request. In that decision, which had similar facts, the court held “‘valid statistical evidence’ demonstrating disparate treatment of a protected group ‘may be relevant and material to demonstrate’ selective enforcement (emphasis added).” Ultimately, the discovery dateline was extended and the commonwealth filed for a motion for an interlocutory appeal. Two of the 4 charges were ultimately dropped because a lower court judge had said there was insufficient evidence and the grand jury was “tainted”. The court also affirmed the discovery order, making a few minor changes.

The discovery issues went up on appeal based on the fact that the Commonwealth did not feel that they had to produce the discovery because they were not going to prosecute the matter anymore. The lower court ordered the discovery and the Commonwealth appealed. On appeal, the court walks through the elements of indictment of a youthful offender, which are (1) the juvenile was between 14 and 17 at the time of the offense; (2) the offense, if committed by an adult, is punishable by imprisonment in State prison; and (3) the juvenile has either previously been committed to the Department of Youth Services, or “the offense involves the infliction or threat of serious bodily harm,” or the person committed a violation of G.L. c. 269, s. 10(a), (c), or (d), or s. 10E. GL.c. 119, S. 54. They concluded that the judge erred in dismissing the complaint.

However, when they examined the sufficiency of the grand jury proceedings, they found that the lower court judge was proper in dismissing the complaint due to a tainted grand jury proceeding because the prosecutor did not present exculpatory evidence. The court concluded that the prosecution engaged in willful, deliberate and repeated failure to comply with the discovery orders. They further stated that the lower court judges did not abuse their discretions in dismissing the complaints without prejudice because it was the proper remedy in this case.

 

Marina W. CESAR vs. Richard R. SUNDELIN.

The question before the appeals court was whether “—in dividing a marital estate that includes a family business-a judge of the Probate and Family Court has the authority to enjoin the party that no longer will have any ownership in the business from operating a competing business.  We hold that a probate judge does have such authority and therefore remand this matter for further proceedings."

In the context of a divorce proceeding, the husband and the wife both sought sole ownership of a family business, a feed and grain store. The probate judge awarded the business to the husband. With the business and certain other property distributed to the husband, the judge declined to give the husband credit for a gift of equity worth approximately $200,000 that the husband's parents had given the couple.  In an effort to shore up the value of the existing good will in the business, the husband requested that the judge order the wife, a veterinarian, not to operate a competing business. The judge denied the request on the sole ground that he lacked authority to grant such relief.

On appeal, the appellate court cited the wide discretion of probate and Family Court Judges.  “We begin by noting that the Legislature has given probate judges broad authority with respect to the division of marital property.”  The court went on to cite cases from other jurisdictions upholding valid non-compete agreements.  The case was remanded for further proceedings as to whether the non-compete agreement was the appropriate remedy for protecting the husband's goodwill in this business.  “We state no position as to whether the husband is entitled to a non-compete order and, if so, how broad such an order should be.”  Further, the quote went on to say that they would not examine whether the non-compete issue was raised in a timely manner by the husband, as the wife argued that it was not and should be waived.

Perspectives: Why Can’t I Just Be NORMAL?

Perspectives: Why Can’t I Just Be NORMAL?: I often talk about being proud to be different. I say that my difference is the very thing that makes me unique and the person who I am, and...

Think Before Divorce

Here are some recent statistics from a seminar which I attended that paint a disturbing picture of the divorce process and should give any lawyer pause before filing their next divorce case:

Children of Divorce are:

-twice as likely to drop out of school as those from intact homes

-three time as apt to have a baby out of wedlock

-five times more likely to be in poverty

-twelve times more likely to be incarcerated

(McManus: Ethics & Religion Sept. 12, 204 Column #1,203)

I understand that there is a distinct difference between causation and correlation, but the societal costs of divorce are tremendous. Ironically, I happened to be reading an article in the most recent edition of the Family Law Quarterly which supports the same premise. Another Inconvenient Truth by Patrick Parkinson reiterates the same point on a global scale. I’m not saying that we should stop being family lawyers, I’m just saying that we need to be aware of our client’s issues. They may have a lot more going on at home than just their divorce action. As a real world example, all one needs to do is volunteer at Attorney-for-the-Day in Probate Court. These statistics are a sobering reminder of the struggles that our potential clients may face. I just recently came across a website to help with post-divorce issues which I recommend to anyone dealing with post-divorce issues so that we can put a dent in some of these sobering statistics: http://www.freshstartafterdivorce.com/blog/.

What a 209A Means for the Kids

209A Abuse Prevention orders are valuable tools to protect families from domestic violence. A judge can issue a 209A that requires an abuser to stay away from his or her partner, or extend the order to include any children in the household. Because of the power of a 209A (they often are in effect for a full year), a judge must carefully weigh the facts of the case when deciding the provisions of the order. 

The 1995 case Jodi Smith v. Robert Joyce out of the Supreme Judicial Court of Massachusetts found that while the plaintiff, Ms. Smith, had demonstrated that she was "in fear of imminent serious physical harm”, thus meeting the statutory requirement for a 209A protective order, there was no evidence of abuse or harm between the defendant, Mr. Joyce, and his sons. Originally, the 209A in this case only allowed Mr. Joyce bi-weekly phone calls with his children. However on appeal, the judge ruled that, “If there is to be a G.L. c. 209A order that a defendant stay away from and have no contact with his or her minor children, there must be independent support for the order.” Because the only evidence of abuse was between the plaintiff and the defendant, the court struck the provision from the 209A order that directed him to stay away from his sons.