The Probate & Family Court is moving to electronic filing (through http://www.efilema.com/ ).  As with any changes in the courts, this is a process and, as of the time of this posting, only certain types of cases may be filed.  The court in cooperation with their vendor, Tyler Technologies, has been providing in-person trainings around Massachusetts. We attended the recent training at the Worcester Law Library and wanted to share some of the most important takeaways: 1. Available to All The e-filing system is available to both attorneys and clients.  This means that pro se (unrepresented) parties can file documents on their own through e-filing as well. 2. Available in Every County The e-filing system is available in every county in Massachusetts as of this posting.  Since this system is new, different counties may have different policies on how they are implementing the interplay between electronic and paper filings.  For instance, some counties...

For many people the judicial system is the most mysterious of the three branches of our government.  Especially in states like Massachusetts where judges are appointed instead of elected, the legislature and the executive branch dominate the news.  In addition, most people want to avoid the courthouse.  The court is where people are sued, get divorced, or go to jail.  But that's not all that happens there. The judicial system in our republic serves the People, just like the legislators and executors.  The courthouse should also be a place where families are protected and respected, where disputes are resolved, and where victims receive justice.  The court system should not be something we fear and it should not be a mystery. So we commend the Massachusetts trial courts for their plan to invite the public in on November 8, 2017, for the aptly titled " This is Your Court Day Open House ".  The event will be taking place in eight courthouses around ...

As of July 15, 2015, the Massachusetts Family Court's website and forms have been updated to use the term "parenting time" in lieu of the outdated term "visitation."  Chief Justice Angela Ordoñez has made this long overdue change recognizing the national trend away from the pejorative term "visitation", which implies that one parent has less of a role than the other. This was simply the right thing to do and we applaud the move.

"Let the Judge Decide!"   How often have I heard that in my career as a divorce attorney and mediator?  Too many times to count. In many cases, when a spouse or their attorney feels that they are unable to reach an agreement with the other side, they simply decide to put the issue to the Judge.  After all, that's the Judge's job.  The whole reason we have a civil legal system is to resolve disputes in a civilized way between adults, but that system is far from perfect. Have you really been told the truth about what it means to "let the Judge decide?" The Probate and Family Court as a division of the trial court is an (almost) free service available to all members of the public over whom they have jurisdiction.  They will not provide you with a free attorney in most cases, but there are free law libraries throughout the state, and the court will provide you with the necessary forms and an interpreter if you have the need.  If you have a civil dispu...

from Wikipedia The Middlesex Probate & Family Court already has a very successful and convenient "Fast Lane" program for so-called uncontested divorce petitions (Section 1A Joint Petitions for Divorce).  It saves time for both the courts and the parties to be able to walk an uncontested matter in to the courthouse and, if all of their paperwork is in order, be heard the same day. According to a press release dated July 9, 2014 ( available here ), the Court will now be expanding this type of procedure to include Informal Estate Administration Petitions: "Tara E. DeCristofaro, Register of the Middlesex Probate and Family Court, has announced that she will be piloting a walk-in session for informal petitions. The walk-in session will be available in the Registry every Tuesday afternoon from 12:00 pm. - 3:00 pm., beginning August 5, 2014. If the program is well received, plans are to expand it to multiple days per week." As with joint petition divorce walk-...

The Probate and Family Court in Massachusetts is underfunded and cannot handle the amount of litigants that seek relief there each year in as timely a manner as everyone would like.  The Court staff are not ignoring cases, but there just aren't enough court staff to handle the demand.  Because of these issues, the wait time for a hearing in most counties has increased significantly. But finally after months and months of waiting your hearing is finally here.  The Judge hears your case and takes the issues under advisement.  And now the waiting begins again.  How long are you expected to wait for an answer from the Judge?  What happens if a decision is never made?  Or, even worse, if the decision was made but never recorded due to some clerical error? In the past, our only option when these issues arose was to check in with the Judge's Lobby and find out if one of the Judge's secretaries could discover the delay.  Of course, this created more w...

Unrolled Joint (Public Domain Image courtesy of Wikipedia) Medical Marijuana has been legalized in Massachusetts and   possession of one ounce or less, even for "recreational" use, has been decriminalized .  In addition, marijuana for recreational use has been legalized in two states in 2013, and more may be on the way . Traditionally, illegal use of marijuana by a parent could result in DCF involvement and would definitely be a factor considered by a family court if two parents were disputing custody in a divorce or paternity action.  Although many parents did not see "what the big deal was", judges would often test for marijuana use and restrict parenting time for parents that tested positive. Does the national shift towards legalization for both medicinal and recreational use mean that smoking pot should no longer be a factor in determining fitness for custody?   In an article written by  Henry Gornbein  when states began legalizing medicinal ...

In May, 2009 Norfolk County instituted a pilot program allowing 209A Restraining Order cases opened in a District Court in Norfolk County to be transferred to the Norfolk Probate and Family Court, if there is already an action pending in that Court.   We described the program in a post entitled:   One Court instead of Two for Domestic Abuse Cases in Norfolk County – A Pilot Program . That pilot program ended 12 months later and was not renewed, which means that the courts do not currently allow the transfer of a 209A Restraining Order case from district court to the probate and family court.  This raises the question: What happens if there is a 209A Restraining Order in a district court and a Divorce case between the same parties in the Probate and Family Court? If there are no children in the case, the Probate and Family Court is unlikely to concern themselves with the Restraining Order case because the divorce is primarily dealing with financial issues which don...

The Massachusetts Bar Association posted the below video to raise awareness about the problems of not properly funding the judicial branch in Massachusetts.  The Probate and Family Courts specifically have been hard hit, and were recently forced to reduce their hours .   As discussed in the video, any law-abiding citizen can end up in the Probate & Family Courts for necessary family matters such as probating a family member's estate or obtaining a guardianship to protect an elderly relative.  When these cases can't be heard in a timely manner, the system is failing the public.  As the saying goes: justice delayed is justice denied. "As the House of Representatives and then the Senate begin their budget debates in April and May respectively, you, as a member of the public or legal community, can make a difference, by reaching out to your state senators and representatives to reiterate the importance ensuring a full funded judicial system. Visit http://www.ma...

In most cases bringing your new significant other or your children to court with you is a bad idea. Bringing a Significant Other: In most cases having a third party in the courthouse (especially a significant other) inflames the other party and makes settlement less likely. While this is not always the case, the risk of making settlement more difficult is usually not worth the benefit of having a third party there. Also, court is relatively boring. Your significant other will be able to wait with you in the courthouse but he/she will not be able to attend any family service meetings (i.e. required mediation prior to the court hearing). Court involves a lot of waiting around and there is usually something better that people can be doing with their time. For these reasons I usually recommend that clients come alone to court, but in the end it is your call. Bringing your Children: Whether or not the hearing involves your children bringing them to court with you is a bad ...

On March 15, 2010, the Chief Justice of the Probate & Family Court released uniform Probate and Family Court Scheduling Practices and Procedures . These procedures include certain requirements intended to promote predictability and uniformity of practice for the scheduling of all types of hearings in the Probate and Family Courts throughout the Commonwealth. The practices include mandatory scheduling of a next event and other requirements intended to keep cases moving forward. One of the changes is to the Motion scheduling practice. Although some courts, such as Plymouth Probate & Family Court, previously allowed for scheduling of Motions at the discretion of the litigants (within the Notice rules ), other courts, such as Norfolk, Middlesex and Suffolk Counties, only allowed for scheduling of Motions by the rules of their individual trial departments. According to the Chief Justice's new procedures: "There shall be no restrictions on the number or timing of motions ...

Once an agreement is reached, a mediator who is also an attorney can help the individuals prepare court documents, such as the Separation Agreement. If you need assistance preparing your Financial Statement, or you need advice as to whether an Agreement is in your best interest then you should consult with an individual attorney. Although, a Mediator can help you prepare an Agreement, they cannot provide you with individual legal advice. Some attorneys do not believe it is appropriate, or "kosher", for attorney/mediators to prepare any court documents because it is too close to the services performed by individual legal counsel. At Kelsey & Trask, P.C. we assist our mediation clients in completing the necessary court forms to ensure that they have been adequately informed about how to successfully present a Joint Petition for Divorce. We believe the goal of a divorce mediation is to reach this successful conclusion and part of that is correctly filling out a Joint Petit...

On April 7, 2010, the Chief Justice of the Probate and Family Courts in Massachusetts, Paula M. Carey, signed Standing Order 1-10: Special Procedures for Cases Involving Children. That order sets out the details for a pilot program in the Hampshire Division of the Probate and Family Court. The pilot program is intended to provide special services and requirements related to the resolution of child-related issues in any case involving children (such as Divorce, Separate Support, Paternity, Support/Custody/Visitation, Modification, Contempt, Guardianship and Termination of Parental Rights cases). The order requires, among other things, that attorneys and parents/care-givers attempt to solve parenting related problems before seeking the assistance of the court, and to conduct themselves in a way that recognizes the unique issues involved in child-related cases. More specifically, the order requires that parties and their attorneys participate in an "Introductory Meeting", n...

Limited Assistance Represetation (also called "unbundling" or "LAR") is a program that allows a lawyer to provide partial services to a client, limiting the attorney's representation to only a specific matter while the client mangages the remainder of the case. On May 1, 2009, the Supreme Judicial Court issued a press release that LAR is now permitted in all trial court departments in Massachusetts. In Famly Law, this often means that the lawyer either assists in the preparation of court pleadings, but doesn't go to court, or agrees to only go to court for specific events. Limiting services in this way allows for greater predictability in the amount of time an attorney might spend working on your case. This predictability allows us to provide a flat fee for many family law related services. The LAR program is an exception to the normal rules, in which attorneys file unlimited appearances and "ghostwriting" is frowned upon. Under the LAR program...

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...

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...

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...

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...