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.

New Law Mandates Increased Access to Services for those with Autism

Massachusetts became the 23^rd 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.

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.  

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.

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

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

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.

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.