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Friday, May 29, 2009

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 another way, the person seeking the order must demonstrate that the abuser has caused or threatened to cause physical harm, or has placed the victim in fear of imminent serious physical harm. Violation of a 209A restraining order is a crime, provided the restrained person knew of the restraining order.

Of course, if you are facing an imminent risk to your safety, call the police or 911. Your immediate safety should be your first concern. While the police can alleviate the immediate danger, calling the police to report abuse does not automatically result in a restraining order. If the immediate danger has passed, then you should consult with an attorney as soon as possible, and attend Court to request a Restraining Order by filing a Complaint for Protection from Abuse.

Monday, May 18, 2009

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.

Saturday, May 9, 2009

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.

Wednesday, May 6, 2009

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 colossal waste of money too.

Currently around 65% of high school students are college-bound and some experts are calling for a re-examination of college level education and what it actually gets you these days. Furthermore, as more and more jobs are now being outsourced overseas, a college degree creates a certain dichotomy — while corporations expect and require degrees for jobs in which college degrees aren’t even necessary, like sales positions, conversely, skilled laborers or technicians only require more expedient training through trade schools. One clear benefit of these tradesmen skills is that most of them can’t be outsourced overseas.

For example, I’m an Account Manager for a hospital. Nothing in my 50k waste of a college education prepared me for what I’m doing. What it did do is get me a foot in the door for an administrative position some 17 years ago, where I worked my way up. The rest has been on the job the training. Never have I had to pull from my college textbooks, lectures, assignments or tests to understand how to manage coordinating people’s health benefits in my current position. One has to wonder, what is the point of a B.A. if all you need for is to weed out people that are perhaps more qualified but couldn’t afford to go to college?

Often times I regret not just going to a trade school or becoming a nurse, medical technician or even a paralegal. I could have completed many of those certifications in 2 years or less, instead I wasted 5 years (yes, I was on the 5 year program) of balancing missing classes to hang out in Grant park with my friends while still meeting the minimum requirements to get passing grades.

Welders, electricians, carpenters, plumbers — their all jobs that can’t be outsourced, yet my job can be. So who’s the real chump here?

As www.bluecollarandproud.com points out, these tradesmen are not your grandparent’s skilled labor workers. Many of these trade schools require some critical thinkers, like welders, who deal with complex mathematical equations to figure out trajectories and angles.

While not all kids are cut out for the trades just as all kids are not cut out for universities, the future of the tradesmen just might translate to job security and skills that seem to be lost on younger generations. When and if my children want to go to college, I will be there to support them emotionally and financially (as much as I’m able), but I won’t make them go. I hope they understand all their options, unlike my parents, who pretty much said, “Go to college or I’ll never speak to you again.” "

Monday, May 4, 2009

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, Whitney goes to the Norfolk Probate and Family Court in Canton and files a Complaint for Divorce. Whitney also files a Motion for Temporary Orders asking a Family Court Judge to give award her custody of the children and order Bobby to pay her child support.
At the hearing on Whitney’s Motion for Temporary Orders, Bobby asks for visitation because he hasn’t seen his children since the Restraining Order went into effect. The Probate Court Judge orders physical and legal custody to Whitney with a visitation schedule for Bobby.

Under the current rules, there are now two Orders from two different Courts that are different. The problem for Bobby is that the Dedham District Court Order is the one that the police will follow. If Bobby tries to pick up his children for visitation he may be arrested unless he and/or Whitney go to the Dedham District Court and ask the Court to amend the Restraining Order.

The pilot program would give the Norfolk Probate and Family Court Judge the power to transfer the Dedham District Court 209A Restraining Order case to the Norfolk Probate and Family Court. This means that when the Family Court Judge makes a decision it will apply in both cases and amendments can be made to the Restraining Order immediately to be consistent with the Probate Court orders.

This benefits Whitney and Bobby by having only one court for them to visit, allowing for less court hearings total, and by having one Judge who can hear all issues and make decisions that are consistent and take into account both the safety concerns of Whitney and the best interest of the children.

The full language of the Order can be viewed here. Under the pilot program, the transfer can be initiated by motion by either a party or sua sponte by the Probate and Family Court judge. The parties will have an opportunity to be heard on the question of transfer.

The pilot program will be for one year and will be reviewed after six months by the Chief Justices of the Probate and Family Court and the District Court.
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