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Facebook & Twitter causing Divorces?

As this news video from CNN describes more and more people are blaming Facebook, Twitter, MySpace and other social networking sites for their divorces. Although I would argue that these sites are simply an outlet for feelings that would otherwise have surfaced in another form, there is still a lesson to be learned here. Assume that anything you write on the internet (whether on a "private" page or not) is going to be seen by everyone. It is not only discoverable (in the legal sense) but likely to be discovered or passed along or shared by family, friends, or other acquaintances.

Happy Holidays

What you text can and will be used against you.

We often warn our divorce clients that e-mails they send to their soon to be ex-spouses WILL show up in court. This is because it's almost impossible for two parties involved in an emotional dispute to write correspondence without overtones of disappointment, hurt or anger showing through in tone. This is even more likely in informal correspondence like e-mail. The same is true for texts, especially now that texts are beginning to replace phone calls as the preferred method of quick short communications. According to this Huffington Post article, "Americans punched out more than 110 billion text messages in December 2008." There are also significant domestic violence implications with text messaging. For instance, text messages are considered a communication and a violation of a restraining order, even if the victim sent a text message first a reply could result in an arrest and charge of violating a restraining order. In addition, texts can be another way for abuse

What is the Automatic Restraining Order (Supplemental Probate Court Rule 411)?

In addition to beginning the litigation process, immediately upon the filing of a Complaint for Divorce, the Plaintiff (person who filed the Complaint) is restrained from taking specific actions with respect to their assets and liabilities. Along with the Summons the Court will provide to the Plaintiff, a Notice describing the Rule 411 Automatic Restraining Order. A sample Notice describing the Rule 411 Automatic Restraining Order is available here. Upon the service of the Complaint and Summons on the other party (the Defendant), they too become restrained by Rule 411. Generally Rule 411 prohibits either party from a. selling, hiding, encumbering or disposing of any personal property or real property in which either of you have an interest (except for in the case of specific exceptions), b. incurring any further debt that would burden the credit of the other spouse (such as making charges on joint credit cards), c. changing the beneficiary designation on any life insurance policy, pens

The Sanctity of Marraige

A recent tongue-in-cheek blog post by fellow attorney and blawger, Gabriel Cheong, describes his support for the 2010 California Marriage Protection Act. The 2010 California Marriage Protection Act, a proposed amendment available at http://rescuemarriage.org/2009/08/22/2010-california-protection-of-marriage-act/ , takes Proposition 8 one step further by banning divorce in the state of California. Support of the 2010 California Marriage Protection Act demonstrates the hypocrisy of attacking gay marriage for being detrimental to the sanctity of marriage when the state allows divorce. Divorce, after all, is the ultimate attack on the sanctity of marriage. Although this is the classic slippery slope argument, the method can hardly be questioned by those who claim gay marriage will lead to people wanting to marry their pets. This leads to the question: What does it really mean to protect the sanctity of marriage? Sanctity is defined by the Merriam Webster Dictionary as 1. the holiness

Bankruptcy Blog and Website

If you enjoy our Family Law Blog then please check out our brand new Blog devoted solely to bankruptcy law issues: Don't Go Alone: A Bankruptcy Law Blog located at http://bankruptcyma.blogspot.com We have also opened a new website devoted to providing answers to the many frequently asked questions from our clients: available at http://www.bankruptcylawmass.com or http://bankruptcy.kelseytrask.com

Eat, Drink and Remarry

I often ask my Divorce clients to tell me how they visualize their life five years from now. This often helps focus clients on their goals, which helps us determine the best decisions to make in their divorce case. For instance, if a client doesn't see themselves living in this area five years from now, then I wouldn't recommend that they buy their spouse out of a marital home. One question that comes up in many cases is the likelihood that a client might get remarried, which can have an obvious impact on divorce issues (such as alimony which typically ends upon remarriage). Almost every Divorce client that enters my office is adamant that they will not get remarried. But the statistics disagree. In fact, 50 percent of divorced individuals remarry within five years . According to a study by the Department of Health and Human Services , the percentage was even higher in the 50s, 60s and 70s. Many clients don't want to hear about these statistics, but I think that one

What does it mean to be a Father?

In Tuesday's New York Times, there was an article entitled "Losing Fatherhood" that explores how DNA testing has changed the face of Fatherhood in America. It's an interesting read and raises the question of what does it really mean to be a Father. Last night on the ABC comedy the Modern Family , the patriarch played by Ed O'Neill (of Al Bundy fame) states that "90% of being a Father is just showing up." In Modern Family Ed O'Neill's character, Jay Pritchett, has an adult gay son who is in a couple and has an adopted daughter, and an adult daughter who is married with three children as well. In addition, Jay Pritchett has re-married to a younger woman and has a step-son. Although there are three distinct families in the show, all with different "father figures", they are all tied together by their relationship to Jay. In last night's episode ( available online here ) Jay plays the role of grand-father, father and step-father a

The Honeymooners' Divorce: Collaborative Law, Mediation or Litigation - Part III

The Kramden's and Litigation: Ralph is a bus driver and Alice is currently unemployed but has worked as secretary at times when Ralph has been laid off. They have no children and Alice is primarily responsible for the management of the finances. Ralph often gets involved in ridiculous schemes that Alice claims have wasted their money. Ralph and Alice often insult each other, and Ralph makes constant threats such as "One of these days... Pow! Right in the kisser! One of these days Alice, straight to the moon!." Recently Ralph was caught using his cell phone while driving and lost his job as a bus driver. When he came home and told Alice she berated him for his stupidity and Ralph became extremely angry. He got right in Alice's face and said, as he so often has, "One of these days... Pow! Right in the kisser! One of these days Alice, straight to the moon!." Alice replies "I'd like to see you try" and in response Ralph steps closer to her and p

What happens to Social Security payments in a Divorce?

A Divorce actually has very little effect on your rights in your spouse's/ex-spouse's Social Security benefits. So long as the marriage lasted ten years, a spouse who has not worked or who has low earnings can be entitled to as much as one-half of the retired worker’s full benefit. If you are eligible for both your own retirement benefits and for benefits as a spouse/ex-spouse, Social Security always pays your own benefits first. If your share of your spouse's/ex-spouse's benefits are higher than your retirement benefits, you will get a combination of benefits equaling the higher spouse benefit. The amount of your spouses/ex-spouses benefit that you receive has no effect on the amount of benefits that they receive. To see a more complete explanation visit this helpful Social Security website.

Retirement Does Not Stop Alimony - The Pierce Decision

UPDATE: There is pending legislation for major changes to the alimony statute in Massachusetts. The Alimony Reform Act of 2011 was filed on January 18, 2011 and you can learn more about the Act at MassAlimonyFormula.com or in our recent blog post highlighting the differences between the bill and the current law . A much awaited decision from the Massachusetts Supreme Judicial Court was published today: Pierce v. Pierce, SJC - 10381, Nov. 9, 2009 . In this case, the Husband had agreed to an alimony order of $110,000 per year after a 32 year marriage, and had voluntarily retired at age 65. Upon retirement, the Husband filed a Complaint for Modification seeking the elimination of his alimony. The trial Judge reduced the alimony to $42,000 per year but declined to terminate alimony. The Pierce appeal centered around the Husband's claim that there should be a presumption that alimony ends upon retirement. Without that presumption, the Husband argues, the person receiving ali

Who is Filing for Bankruptcy?

Courtesy of FancyStats.com

Can we hire one attorney to represent us both in our Divorce?

Don't believe everything you see in the movies. In the popular teen pregnancy flick Juno the adopting parents end up getting divorced and the Husband states "I called Gerta Rauss. She says she can represent both of us. They call it 'collaborative divorce.' It’s apparently all the rage right now." Although, collaborative law is "all the rage" right now, it does not involve one lawyer representing both parties. It is not ethical or practical for a lawyer to represent both parties in a Divorce, whether through collaborative law or litigation In fact, Rule 1.7 of the Massachusetts Rules of Professional Conduct prohibits a lawyer from representing a client if that representation will be directly adverse to another client unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client AND each client consents after consultation. Although both clients might consent, it is not reasonable to be

M.G.L. 93H and Data Privacy Basics

Massachusetts has enacted one of the strictest data-privacy laws in the country and is scheduled to go into effect on March 1, 2010. Any personal information that any business entity maintains or stores is subject to Massachusetts General Laws Chapter 93H , while M.G.L 93I governs the destruction of physical and electronic documents and data. Both M.G.L. 93H and M.G.L. 93I define “personal information” as a person’s last name and either his or her first name or first initial, combined with any one of the following: a social security number ; driver’s license number or state-issued identification card number; financial account number , debit or credit card number, with or without any required security code, access code, personal identification number or password that would permit access to a resident’s financial account. Guidance for business’ implementation of M.G.L. 93H can be found in 201 CMR 17.00 , and creates an affirmative duty to every person that “owns, stores or mai

October is National Domestic Violence Awareness Month

President Obama on September 30, 2009 proclaimed October, National Domestic Violence Awareness Month. As with any issue that endangers the health, safety or welfare of individuals, the first step towards ending that danger is to raise Awareness. It seems that we are bombarded everyday with walkathons, and fund raisers, and pharmaceutical commercials that want to raise our Cancer Awareness, our Heart Disease Awareness, even our Awareness of Erectile Dysfunction. It becomes easy to forget that there are dangers in this world, and even in our own backyard, that don't stem from viruses or diseases. There are dangers, such as Domestic Violence that aren't caused by hunger or a germ, but instead by poor choices and a failure of support. It's hard to know if there will ever be a cure for cancer, but we know the cure for Domestic Violence. A safe home and access to justice can provide victims of Domestic Violence with a voice to end their suffering. If you or someone you know

Is there a Criminal Record of a 209A Restraining Order?

If you are served with a Complaint for Protection from Abuse (sometimes referred to as a 209A Restraining Order because of the statute: M.G.L. c. 209A ) then your name and the Complaint are recorded in the Domestic Violence Record Keeping System which is visible to Judges and law enforcement officials (and certain airport personnel) through CARI (Court Activity Record Information), a subset of CORI (Criminal Offender Record Information). There is presently no statutory provision in Massachusetts allowing these records to be expunged. This is explained in greater detail in a Massachusetts Bar Association article which indicates that the Mass Bar proposed an amendment to the statute, mandating expungement of the record when the Order was vacated at the first hearing (after being issued on an ex parte hearing, which most 209A Orders are initially). Unfortunately, this legislation was not enacted by the legislature, and today the law remains that there is no statute allowing these recor

Family Law Blogs Directory and other Useful Tidbits

We'd like to thank J. Benjamin Stevens for adding us to his Directory of State-Specific Family Law Blogs . If you follow our blog and are looking for information that might be more specific to your state then check out the directory . In addition, if you're contemplating divorce or currently involved in a divorce, there is some other great advice to be found on Attorney Stevens' website , including the latest post "Tips to Minimize the Difficulties of Divorce" .

New State Median Family Income Figures Released

The United States Department of Justice has released the Census Bureau State Median Family Income By Family Size figures for means test calculations on Bankruptcy Cases filed on or after November 1, 2009. The new figures are available on the U.S. Trustee's website here . These figures apply only to cases filed on or after November 1, 2009. For Massachusetts, the new State Median Family Income figures are as follows: Family of 1: $53,505 Family of 2: $69,451 Family of 3: $82,591 Family of 4*: $99,648 *Add $6,900 for each individual member in excess of 4. Try our Chapter 7 Means Test Calculator by clicking here or on your mobile device by clicking here , now updated with a NEW feature that allows you to choose whether to use the old or new Median Family Income figures. For additional questions regarding the new State Median Family Income figures, or any questions regarding Bankruptcy or the Chapter 7 Means Test, please contact Attorney Matthew Trask at (508) 655-59

Should Parenting Plans change with the age of the children?

I have recently become a Father and I spend a lot of time amazed at how my daughter changes every day. Those changes mean that her needs continue to change and grow, and paying attention to those changes is part of effective parenting. Every case is different, especially when it comes to family dynamics, so every case requires your attorney to listen and learn about YOUR family. Because every family is so different, there cannot be specific guidelines on custody and visitation for every family or even every child. The Court does try to recognize that their are certain developmental stages that each child goes through, and that it is important for both parents to be involved in the child's life for their development to be complete, and also that at each stage, a child's needs are different. In an attempt to recognize at least some generalities in these differences, a committee of mental health practitioners, family law lawyers and Judges was formed. They wrote a very useful gui

The Huxtable's Divorce: Collaborative Law, Mediation or Litigation - Part II

The Huxtables and Collaborative Law: Cliff is a doctor and Clare is a lawyer. They have five children. They both share in parenting and managing the finances. Cliff's office is located in the home. Some of the children live at home but the number is constantly changing because Clare and Cliff keep their doors open to their children. Clare recently informed Cliff that she has met another lawyer who she feels has more in common with and she wants a divorce. Cliff is shocked but after dealing with the initial shock, he realizes that he does not want the process to be acrimonious or to affect their relationship with the children. He has seen how other doctors have had their families and practices torn apart by drawn out litigation and does not want his children or patients to suffer. Both Clare and Cliff consult with attorneys and are informed of the possibility of proceeding through mediation, collaborative law or litigation. Although, Cliff is wary of litigation, he is afraid of

How NOT to Declare Bankruptcy

Declaring Bankruptcy is a time-intensive and technical process involving financial research, preparation of documents and schedules, and attention to detail. This is NOT how one "Declares Bankruptcy" . If you would like to learn more about the correct way to declare bankruptcy, contact Attorney Matthew Trask or Attorney Justin Kelsey for a one-hour initial consultation at (508) 655-5980. (Thanks go to Jonathan Eaton and NBC's "The Office" for providing the inspiration for this Blog).

The Cleavers Divorce: Collaborative Law, Mediation or Litigation - Part I

The votes are cast - The Cleavers and Mediation: Ward is a businessman and June is a stay-at-home mom. They have two children Wally and Beaver. Ward handles all of the finances and June handles most of the home care including parenting, although once in a while Ward is needed to help discipline the children (in a very stern but fair kind of way). Ward and June agree that the spark and color had left their marriage long ago and that they were only staying together for the children. They have agreed that a divorce would be best and have already sat down to a family meeting with Wally and the Beaver and explained that although Mom and Dad are getting a divorce, they will still both be involved regularly in the children's lives, that it is not the children's fault and that they both love the children very much. Ward, eager to move forward with the divorce quickly and as cheaply as possible, suggests that they attend mediation and provides June with the name of a mediator he has f

What is the Stevenson-Kelsey Spousal Support Calculator?

UPDATE: There is pending legislation for major changes to the alimony statute in Massachusetts. The Alimony Reform Act of 2011 was filed on January 18, 2011 and you can learn more about the Act at MassAlimonyFormula.com or in our recent blog post highlighting the differences between the bill and the current law . Attorney Scott R. Stevenson of Hingham, Massachusetts and Attorney Justin L. Kelsey, Esq. (one of the authors of this blog) created the Stevenson-Kelsey Spousal Support Calculator as a tool to enable family law practitioners to better advise their clients regarding the settlement of divorce cases where a primary issue is the proposed alimony payment from one spouse to the other. There is not currently any “formula” for the calculation of the spousal support obligation (also referred to as “alimony”) that is endorsed by either the Massachusetts Legislature, a consensus of Massachusetts Probate and Family Court Justices, or even a consensus of Massachusetts family law practiti

Check out these fun sites:

It's time for a lighter, more fun blog post. Check out these sites/stories which we hope will add a little amusement to your day: Husband who tries to avoid divorce proceedings by claiming the marriage ended when he died. Yes you read that correctly. Canadians are trying to kill us with health care reform. Don't worry it's tongue in cheek, and very very funny. Take a virtual tour of the Kelsey & Trask, P.C. offices in Natick. Now you'll know your way around when you come to visit.

Mediation, Collaborative Law or Litigation: What's your Vote?

One of the first things I explain to clients in our initial one hour divorce consultation is that there are three types of professionals in Massachusetts who can help clients resolve their divorce case: Mediators, Lawyers trained in Collaborative Law, and traditional Litigators. Each of these methods has strengths and weaknesses, and they can be demonstrated by showing you how some well known couples might have experienced these various options: Couple #1 - The Cleavers. Ward is a businessman and June is a stay-at-home mom. They have two children Wally and Beaver. Ward handles all of the finances and June handles most of the home care including parenting, although once in a while Ward is needed to help discipline the children (in a very stern but fair kind of way). Couple #2 - The Huxtables. Cliff is a doctor and Claire is a lawyer. They have five children. They both share in parenting and managing the finances. Cliff's office is located in the home. Couple #3 - The H

Equitable Division: This isn't Judge Solomon's Court

I was recently directed to two articles involving Husbands, one in Germany , and another in Cambodia , that, as part of their divorce, took their half of their marital homes, literally. Not by selling and getting their share of the equity, and not by buying their Wife out of her share, they literally cut the house in half. Don't get any ideas if you're getting divorced in Massachusetts, though. In Massachusetts the Court is directed by M.G.L. c. 208 § 34 to divide the assets of the parties and award support based on numerous factors including the length of the marriage, health of the parties, age of the parties, income of the parties, opportunity for future acquisition of assets and income, and more. When considering all of these factors, we often discover that an equal division of the assets, i.e. a 50/50 division, is the equitable and fair resolution. However, there are also cases where the totality of the circumstances require an unequal division. You won't find Judge

If I File for Bankruptcy, does the Automatic Stay Protect Co-Debtors?

Generally, the automatic stay provisions of the bankruptcy code at 11 U.S.C. § 362(a) apply only to the debtor filing for relief from the bankruptcy court. However, in certain circumstances, the fact that a debtor filed for Chapter 13 bankruptcy can stop collection action against co-debtors, even if the co-debtors did not file bankruptcy. The “co-debtor stay”, set out at 11 U.S.C. § 1301(a) , is a section of the Bankruptcy Code that prevents collection action on consumer debts against co-debtors of the person filing for Chapter 13 bankruptcy for the duration of the bankruptcy case. The co-debtor stay operates to delay collection efforts against individuals close to the debtor who have obligated themselves on debts incurred by and for the benefit of the Chapter 13 debtor. Generally, the co-debtor stay applies with respect to any consumer debt for which another individual is also liable, and it continues until the Chapter 13 case has ended. The obligation of the co-debtor does not

Will I be able to keep my health insurance after the divorce?

Whether or not you can keep your health insurance after the divorce will depend on two factors, one of which is in your control and one of which is not. If you are currently on your spouse's health insurance, then they are required by the Rule 411 Automatic Restraining Order to maintain you on your health insurance during the pendency of the Divorce case. However, at the end of the case when you are divorced your status as an eligible dependent on their plan may change. If your spouse's employer participates in a self-insured plan (usually only the case with very large employers), then the plan is covered by Federal law and not State law, in which case the employer can ignore the Massachusetts' law requiring eligibility of ex-spouses. This means that if your spouse's employer has a self-insured plan then no matter what the Court order states you will likely be terminated from your spouse's health insurance upon the divorce. At that time you will be eligible for C

New Income Based Repayment Program May Reduce Student Loan Payments

Although student loan debt can almost never be discharged trough bankruptcy, a new program which went into effect on July 1, 2009 called Income-Based Repayment (IBR) may provide some relief for those who cannot afford high monthly federal student loan payments. The U.S. Bankruptcy code at 11 U.S.C. 523(a)(8) specifically deems student loan obligations as “nondischargeable debt” (i.e., debt that cannot be discharged through a bankruptcy filing) absent a showing of “undue hardship”, which, as contemplated by the code, is a nearly impossible standard to prove. Fortunately, the IBR program may provide some relief. IBR cannot be used to obtain an outright discharge of student loan debt, but it can help borrowers keep their loan payments affordable with payment caps based on income and family size; often capping IBR loan payments at less than 10 percent of their income household income. IBR will also forgive remaining debt, if any, after 25 years of qualifying payments. IBR is available

What if you were never born?

No, this is not a post about " It's a Wonderful Life ". But I will tell you a story about a man who was told by the Town of Carver that he did not exist. While in the Plymouth Probate and Family Court last Tuesday, June 30, 2009, waiting for the Judge to call my client's Motion for hearing, I was listening to the presentations made by other litigants in Court for hearing on that day. One of these litigants was a quiet man. He was accompanied by his Wife, who did most of the talking for him. She explained to the Judge that her husband had requested a copy of his Birth Certificate from the Town of Carver only to discover that they had no such record. This was puzzling to her and her husband because he had grown up in Carver and lived much of his life there. He had a binder of evidence including school records, an Affidavit of one of the women present at his birth, and even military records. This man, who the Town of Carver didn't think existed, had even served

Bankruptcy Blog and other Resources

In addition to providing answers to commonly asked questions on our website, we also try to provide links to other resources where you may find further information. These links include the Court websites , other government websites , and organizations that we either belong to or may have further resources that could be useful to the public. In addition we will often include in our Twitter accounts, links to blog posts from other blogs that we believe you might find interesting. You can click here to connect with Attorney Trask or Attorney Kelsey on twitter. One particular resource that you should review if you are considering bankruptcy is the Bankruptcy Law Network , where we often find great blog posts on numerous questions involving bankruptcies. Here are just a few examples: San Diego: New Ruling Allows Student Loans to be Discharged in Chapter 13! http://ff.im/-4nJBn How Do I Find a Good Deal on a Secured Credit Card? http://ff.im/-4FnH5 Do I have to be a citizen to file a

Question: What other factors should I consider when deciding when I should file for Bankruptcy?

Question: What other factors should I consider when deciding when I should file for Bankruptcy? Factors regarding the need to obtain an automatic stay will likely be dictated by your creditors, not you. The automatic stay is a useful tool in temporarily stopping foreclosure proceedings brought by your mortgage holder(s), as well as collection efforts, collection calls and lawsuits filed by your creditors, if any. This foreclosure and debt collection process generally takes a few months, not a few days, and the benefit of the automatic stay can create some additional time for the debtor to deal with logistical issues associated with preparing the bankruptcy petition, appraising assets, selling real property or finding new housing, if necessary. In order to file for bankruptcy under any section of the Bankruptcy code (Chapter 7, 11, or 13), your federal income taxes must be filed up to the current year (2008). Other documents are necessary for preparing the bankruptcy petition and sc

Question of the Week: Will my new job affect my Bankruptcy filing?

I have been out of work for some time, my bills have gotten out of hand, and I need to file for Bankruptcy. I may be getting a new job soon. Will my new job affect my Bankruptcy filing? If a would-be Chapter 7 debtor were to see a significant change in their income before filing a Chapter 7 bankruptcy, there is a risk that the debtor would no longer qualify under the Chapter 7 Means Test , and must file under Chapter 13 . While Chapter 13 Bankruptcies are often effective in allowing a debtor to cure mortgage arrearages and keep their house , if the debtor’s intention is to pursue liquidation of all assets (including the house) or does not have real property to protect, your increased income would be required by the U.S. Trustee to fund the Chapter 13 plan, and not be used for other costs/expenses. In this case, a Chapter 7 Petition should be filed before any increase in income.

What do I do if my ex threatens to take our child out of the country?

If a parent wants to move a child's residence out of the country, then the same laws apply as when the parent wants to move to another state, though the evaluation by the Court may be slightly different. The removal statute is discussed at length in our previous blog: What do I do if my ex wants to move out of state with our child? . If you are afraid that the other parent may remove the child illegally and once the child is out of the country it may be difficult to get them back, then there is still something you can do. The U.S. Department of State has a website entitled Child Abduction Prevention with many useful tips including: 1. Be aware of your state's laws relating to removing the child from your state against the other parent's wishes. This is a crime in most states and may also be a federal crime. 2. Obtain a custody order that clearly defines both your and the other parent's rights relating to the child and any limitations on those rights. 3. Be aware

What do I do if my ex wants to move out of state with our child?

In Massachusetts, M.G.L. c. 208 Section 30: Minor Children; Removal from Commonwealth; Prohibition states that a child who the Massachusetts' probate courts have jurisdiction over shall not be removed from the Commonwealth without consent of both parents or Order of the Court. This statute does not apply to vacations; generally the term "removal" refers to a change of residence. If one parent unilaterally moves out of state with the child without the permission of the other parent and without an Order of the Court, then you must act immediately to force the return of the child. If the child resides out of state for more than six (6) months then under the laws of most states (most states having enacted the Uniform Child Custody Jurisdiction and Enforcement Act, or some variation of it), that other state will now be the "home state" and have jurisdiction over the child. You should consult with an attorney about the appropriate action to bring before a Court in

What happens to payments owed to an ex-spouse in Bankruptcy?

Obligations that are considered by the Bankruptcy Court to be “domestic relations orders” are non-dischargeable and priority debts. They are defined in U.S. Bankruptcy Code Title 11 Section 101 14(A) . In summary, the term 'domestic support obligation' includes child support, alimony, or other support payment, and can include payments for housing, health insurance or other costs paid on behalf of a spouse or ex-spouse. If payments are owed and in arrears then the 'domestic support obligation may also include interest and the interest is non-dischargeable as well. It is very important when preparing a Chapter 7 Bankruptcy to be aware that these debts will not be discharged, i.e. will still be owed after the bankruptcy. It is likewise very important when preparing a Chapter 13 Bankruptcy to be include the 'domestic support obligation' in the Chapter 13 plan as a priority debt and to be clear about how arrears will be paid versus how the ongoing payment reduces the f

Question of the Week: What is an Abuse Prevention Order?

In Massachusetts, M.G.L. c. 209A allows the court to create orders that protect people from abuse. These orders, known as “Restraining Orders”, “Abuse Prevention Orders” or “209A Restraining Orders” prohibit the defendant not to abuse or contact and to stay away from the person who has obtained the order, and, if applicable, the person’s minor children. 209A Restraining orders may be obtained against a current or former spouse, a current or former household member, the other parent of a child, a relative by blood or marriage, or anyone with whom the person has had a substantial dating relationship. If the parties do not have one of the relationships described above, the court will not issue a 209A Restraining Order. Obtaining a 209A Restraining Order is a civil proceeding, rather than a criminal proceeding. That means that the person seeking the order must prove by a preponderance of the evidence that they have a "reasonable fear of imminent serious physical harm". Put

Financial Crisis? You are not alone.

Often people who are deep in debt, are more afraid to confront the reality of their situation than anything else. That fear can lead people to do things they never thought they would do: to stop opening their mail, to stop answering the phone for fear of dealing with bill collectors, or even to lie to their family and friends. It is important to understand that you are not alone. You are not the first person to go through a crisis and there are resources out there to help you. To read about how even an economic reporter fell into the trap of overusing credit check out this New York Times article: http://tinyurl.com/qukwpb .

Q of the Week: What will I keep if I file for a Chapter 7 Bankruptcy?

When filing for Bankruptcy certain property of the debtor is exempt from the Bankruptcy estate, which means that it is not subject to being taken by the Trustee and used to pay your debts. When filing a Bankruptcy as a resident of Massachusetts a debtor can choose to use the exemptions allowed under either State or Federal law, but you must choose one or the other. There are many exemptions that are similar under both schemes, such as the exemption of most qualified retirement plans. A table of the maximum exemptions as of April 14, 2009 in categories where the state and federal exemptions differ significantly can be found here . Please note that these figures are subject to change and you should consult with an attorney to obtain the most current figures and to decide which option you should choose.

College: Is it the Right Choice?

In Massachusetts, Probate and Family Court Judges have the authority under the child support statute to order divorcing parents (or unwed parents of children involved in paternity cases) to pay for college education expenses for their children. Unfortunately, this can lead to expensive litigation when one parent is unwilling to accept (or to tell their child) that certain colleges are too expensive for their family budget. Even worse, it seems to have become a foregone conclusion that most (if not all) children should go to college. Check out these great thoughts from The Imperfect Parent Blog , too many people (especially in the Probate & Family Court) are afraid to say this: Kids, Don't Go To College: "Why are we pushing college on every kid when not every kid is cut out for it? There’s no shame in not going to college, in fact, going to college just may be a waste of time for most high school grads. And if you listen to some talking radio heads, it may just be a coloss

One Court instead of Two for Domestic Abuse Cases in Norfolk County – A Pilot Program

Beginning May 4, 2009, Norfolk County will start a pilot program involving the interdepartmental transfer of certain abuse prevention proceedings. In plain English this means that 209A Restraining Order cases opened in a District Court in Norfolk County may be transferred to the Norfolk Probate and Family Court, if there is already an action pending in that Court. EXAMPLE: Whitney and Bobby are married and live in Dedham. One night they get into a fight and Whitney calls the police. Bobby is not arrested but is escorted from the home by the police and Whitney is provided with an emergency 209A Order for Protection from Abuse (commonly called a Restraining Order). The Restraining Order requires that both Whitney and Bobby show up at the Dedham District Court the next day to go in front of a Judge who will decide whether the Restraining Order should be extended. After a hearing the Judge extends the Restraining Order for two months ( “a cooling off period”). That afternoon, Whit

Why doesn't my agreement say [fill in the blank]?

I recently updated by iTunes software and saw the following warning: "You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design manufacture or production of missiles, or nuclear, chemical or biological weapons ." ( iTunes EULA: Section 10, Paragraph 8 ) Apparently, Apple is worried I am going to use my newest edition of iTunes to manufacture my own MIRV's. (There's an app for THAT?!) I suppose it's possible to figure out a way to launch a first strike from an iPhone (it can do practically everything else), but the likelihood of me trying, or even wanting to is, as we say, de minimus . A good lawyer will go to great lengths to make sure that his client is protected, but sometimes, we fail to distinguish between "what might possibly happen" and "what will probably happen". A good attorney should not try to insulate you from every abstract conting

Mandatory Discovery Expanded to Include Separate Support and Paternity Actions

Effective May 1, 2009, Supplemental Probate and Family Court Rule 410 will now require mandatory self-disclosure in Paternity and Separate Support cases similar to that already required in Divorce cases. Under the old Rule 410 , parties in divorce cases are required to, within 45 days after the date of service of the Summons, serve on the other party specific documents designed to disclose the basic financial information necessary to settle the case. This includes tax returns for the past three years, last four (4) paycheck stubs, bank account statements, health insurance documentation, retirement account statements and more. Under the new Rule 410 effective May 1, 2009 , parties in Divorce and Separate Support cases are required to, within 45 days after the date of service of the Summons, serve said documents (tax returns for the past three years, last four (4) paycheck stubs, bank account statements, health insurance documentation, retirement account statements, etc.). In addition,

Lawyers particularly vulnerable to E-mail Scams

By now most of us have heard of the Nigerian/Check Cashing E-mail scams (hopefully). The basic outline of the scam is as follows: You receive an email that offers to assist you in obtaining money that belongs to you, or offers to buy something from you for a price greater than you advertised it for (typically received when you put something for sale on Ebay or Craigslist or similar sites). The hook is that they are offering to pay YOU money. Once you receive the check and cash it, you just have to send them back a portion of it. The trick is that the check is a bad check, even though your bank may let you draw funds on it after three days. These out of state, or out of country bank checks take advantage of a banking loophole that most banks will allow you to draw on a check after three days, but the bank doesn't actually receive the funds on the check for up to ten (10) days. Once the check bounces, the bank will hold you responsible for the money (often just taking it out of