New Hampshire’s Family Division Rule 1.25-A

New Hampshire recently put into effect a much need mandatory self-disclosure rule for Family Division cases. Family Division Rule 1.25-A took effect on December 1, 2011. The rule is designed to streamline the discovery process by having the parties exchange certain required financial documents early in the litigation process. The expectation is that this will reduce costs for litigants (by reducing the amount of discovery requests by attorneys) and enable parties to have a more productive divorce mediation or temporary hearing early in the process. The rule applies in full to all new actions in the Family Division for divorce, legal separation, annulment and civil union dissolution. An abbreviated version of the rule applies to parenting petitions, child support petitions and petitions to enforce or change court orders in parenting, divorce, legal separation or civil union dissolution cases. Please see the N.H. Court website for instruction and a copy of the Court’s checklist form.

Parties must provide the required documents no later than either forty-five (45) days from the date of service/delivery of the petition or ten (10) days prior to the temporary hearing or initial hearing on the petition, whichever is earlier. [Read more...]

Will an out of state conviction count as a first offense in MA?

Additional Information:

Seven years ago, while I was living in NJ, I was convicted of possession of a controlled substance. I’m in grad school now in Central Mass and was arrested on similar charges. I did some research and found that the possession law in Massachusetts has stiffer penalties for those convicted of a second offense. For possession of a Class B substance, maximum of 2 years in jail vs. only one year for a first offense. Will the New Jersey conviction count as a first or prior offense for me? Thanks for any help.

ATTORNEY ANSWER:

The Answer is maybe.  If the Commonwealth does what is known as a III search for out of state records, they could try to amend the charge to a second offense.  Please keep in mind, however, that proving an out-of-state conviction is more difficult as it is unlikely that anyone from NJ is going to come to Massachusetts to confirm that you are the same person as that the named defendant in the NJ case. [Read more...]

If a person attends drug counseling will that stop the prosecution of a drug charge in MA?

Additional Information:

Our son was arrested for drug possession and is awaiting trial.  You should also know that he was arrested nearby a school in Lowell.  He has a court appointed lawyer but the lawyer hasn’t talked much to my son about it and hasn’t advised him on what he should do. I read somewhere that a person can ask the judge to stop the prosecution if he agrees to do drug counseling. Does that apply for a drug possession case in Massachusetts?

ATTORNEY ANSWER:

If your son was charged with what is called a “School Zone” violation (possession of drugs within 1000 feet of a school), he is facing mandatory jail time unless the charge is broken down to straight possession.  Drug counseling would not apply to this situation.  Whether or not drug counseling rules apply depends on the type of drugs.  If your son is unhappy with his attorney, he should seek out a consultation with a criminal defense attorney.  I would be happy to consult with him.  [Read more...]

Can my wife get custody of our son?

Additional Information:

My wife and I got divorced two years ago and I got sole custody of our 5 year-old son. My question is if I put it in my will that my brother will take care of my son should I pass, will that happen or can my wife get custody if she wants? Thanks.

ATTORNEY ANSWER:

As the child’s biological mother (same would apply to fathers in this situation), she will automatically be entitled to custody in the event you die, unless her parental rights have been terminated. The granting of sole legal and/or sole physical custody does not terminate parental rights of the other parent.  If you do not want your former wife to have custody, you would need to instruct your brother to file for Guardianship of your son in the event of your death.  You should state in your will that you do not want your former wife to get custody and should have a separate document stating the reason why you believe that she is unfit to have custody and why it is in your child’s best interests to be raised by your brother. You should leave sufficient funds to your brother for this purpose (perhaps having a small life insurance policy of $30,000.00   to cover any legal fees).  Your brother will have to prove that she is an unfit parent in order to be named Guardian of your son. [Read more...]

Can I remove my ex from my health insurance?

Additional Information:

As part of our divorce settlement I’m supposed to keep my ex wife on my health insurance. We have no kids. Now I’m getting re-married and I’m wondering what the heck I should do because I’m pretty sure the insurance company isn’t going to let me have two wives on my health insurance policy. How do I fix this? Can I remove my ex from the health insurance?

ATTORNEY ANSWER:

The “fix” to your situation depends on the language in your separation agreement. In most separation agreements, the provisions covering health insurance generally contain language that states the former spouse is covered so long as eligible for such under the insured spouse’s plan.  First, you need to read your agreement and see if it states this.  Next, contact your HR department or insurance company and get confirmation that they are not covering former spouses if the employee remarries.   If they will cover, obviously you’re all set.   If not, you will need to send a written note (e-mail is fine) to your former wife letting her know that you are getting married (assuming you have not yet told her) and your insurance will not cover her once you remarry.  You should further tell her that your understanding is that your employer will be sending her notice of a termination date and her available options for coverage under COBRA.  The one caveat to consider is that you could have obligations to pay for COBRA depending on how the health insurance provision in your settlement agreement was worded. If you have additional questions, please do not hesitate to contact me directly. Thank you and good luck. [Read more...]

Our son was recently arrested while carrying a small amount of cocaine.

Additional Information:

Our son is a freshman at a college near Lowell. My wife and I are wondering if we should spend our money (which we can afford) to hire an attorney to defend him in this charge.  Is it going to make any difference or will he end up with the same type of plea bargain? Thanks.

ATTORNEY ANSWER:

You should absolutely hire an attorney to defend your son. The consequences of the wrong plea could result in your son losing any financial aid for up to two years for possession of cocaine, even a small amount. In addition, depending on how the drugs were found and the underlying reason for the arrest, there may be legal reasons that the search was not valid. The quality of the attorney representing the Defendant absolutely affects the quality of the plea bargain. [Read more...]

What is the new law in Massachusetts regarding marijuana?

ATTORNEY ANSWER:

I assume you are referring to the change act in 2010 that decriminalized the possession of less than one ounce of marijuana, making it a civil violation.  Law enforcement are required to treat such possession as a civil offense.  The one caveat is that distribution or dealing less than an ounce is currently considered a crime in Massachusetts. [Read more...]

How do I go about filing for divorce if we have no contact?

Additional Information:

I separated from husband in 2008 and moved to Chelmsford, MA from NY. How can I get divorce if we have no contact? We did not have any children from marriage but I do have a ten year old from previous. We parted in ill terms & I have no way of contacting this man as I do not know where he moved to after I left. How hard is it to get a divorce in the State of Mass?

ATTORNEY ANSWER:

It is not difficult to get a divorce in Massachusetts. Usually, you file for divorce and can have your spouse served at their last known address. As you know that he moved from his last known address, you will have to accomplish service by Publication. This is a request to the Court to publish in a local newspaper the legal notice that you are seeking a divorce. If you have any knowledge of where your husband’s parents or siblings live, you might want to contact them to see if they have a means of contacting him as that would make it easier.  As you have lived here for more than a year, you can file in Massachusetts. Once you have filed and served by publication, you will have to wait six months to request a hearing. At that hearing, so long as you have complied with service requirements, the Court will enter a Judgment of Divorce Nisi which will become final 90 days later. I would be happy to discuss the process further with you. [Read more...]

Do we have to go in together to file for uncontested divorce in MA?

Additional Information:

Do a husband and wife both have to be present to file a joint petition for an uncontested divorce in Massachusetts?  Do we have to go together or can we go separately?

ATTORNEY ANSWER:

Generally, both parties to a divorce (even an uncontested matter) have to appear at Court to present the separation agreement for approval.  This is so that both parties state on the record that they voluntarily entered into the agreement and agree that it is fair and reasonable under the circumstances. A Motion to Waive Appearance of one Party is sometime allowed for good cause (such as it would be an economic hardship for a party to travel from out of state for the hearing) so long as accompanied by an Affidavit setting forth the reasons to waive the appearance of that party. [Read more...]

How long after a divorce in the state of Massachusetts does someone have to wait before getting married again?

ATTORNEY ANSWER:

Once the divorce is final, you can get remarried approximately four days later. You can apply for a marriage license one day after your divorce becomes final. It usually takes three days for the license to issue. Obviously, holidays and weekends and other days town offices are closed can change this calculation. Please note that in Massachusetts, the divorce is not final when you present your agreement to the Court. In a joint petition, the Judgment Nisi does not issue for 30 days after you’re in Court. Once the Judgment Nisi issues, there is still a 90 day waiting period for your divorce to become final. [Read more...]

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