When Caring for an Elderly Relative becomes undue influence

posted by Eric Schutzbank

Taking care of a deceased person’s assets and business affairs adds stress to an already emotional situation. Adding to the anxiety, families sometimes discover their loved one has been taken advantage of or manipulated by the relative they entrusted to provide care. A vulnerable elderly person is easy prey to someone who wants to manipulate them by seeking to be a beneficiary of their estate to the possible exclusion of the rest of the family. If a family member suspects this has occurred, do they have any legal recourse and/or means to protect the Elder who is being financially exploited? Yes. The first step is to make a report to your local Elder Services Agency so that a protective services investigation can be initiated in accord with M. G. L. c. 19A.  Please keep in mind that if the Elder is deemed competent, he or she can legally refuse to accept the services/protections provided by the mandated Elder Services Agencies in Massachusetts.  What is undue influence and how can it be proved?

Undue Influence Defined

As the name implies, undue influence means that a vulnerable person was influenced in a manipulative way. Generally, a powerful individual has used unfair means such as deception, exploitation of the elder’s disabilities or weaknesses, has fostered dependency, played on fears, emotionally embarrassed or blackmailed the elder or isolated the elder from other honest family members or others the elder would ordinarily trust.  The perpetrators use various techniques and manipulations to gain power and compliance, exploiting the trust, dependency and fear of older adults. Over time, the perpetrators gain control over the decision making of their unwitting victims. [Read more...]

Spousal Support Modification: What You Need To Know Whether You Pay or Receive Spousal Support

posted by Eric Schutzbank

Alimony is a word that most divorcing parties do not want to hear. The higher income earning spouse doesn’t want to pay to and the lower income earning spouse either doesn’t want to ask for it or isn’t getting enough in support to meet his or her bills. Until the Alimony Reform Act of 2012, family law practitioners could not give their clients any concrete guidance on how much alimony they would pay or receive. Even how long they would pay under a settlement was a guessing game at best. The Alimony Reform Act established durational limits, set an end date for alimony in long-term marriages and established that the amount should be between thirty and thirty-five percent of the difference in income between the parties. The law also set out varying effective dates for when parties paying alimony could seek to terminate or modify their alimony based on the new statute. Those dates are stacked between the date the law went into effect last year and March of 2015.

Grounds for Modification:

Remarriage of or Cohabitation by the Recipient

Under the Alimony Reform Act, alimony terminates automatically upon the remarriage of the recipient. There is no longer a need to go to Court to have alimony terminated in this situation. In many cases, if the spouse who is receiving the support cohabitates (moves in) with someone else with whom they are involved in a romantic relationship (so platonic roommates do not count as cohabitation but could be an economic change in circumstances) before the alimony period ends, the support can be suspended or terminated. Whether or not the Payor needs to file a Complaint for Modification and go back to Court, however, depends upon the language in the parties’ Separation Agreement or Divorce Judgment. In this situation, it is up to the Payor to take the other party to court to request that alimony be suspended or terminated due to the cohabitation of the Recipient Spouse.

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When can a Divorce Decree or Separation Agreement Approved by the Court be Modified?

posted by Eric Schutzbank

While lawyers like to plan for all contingencies, the reality is that life is extremely fluid and we cannot predict all of the possibilities. A parenting plan that works when the children are ages three (3) and five (5) may not work very well when the children are seven (7) and nine (9). When a Separation Agreement is drafted or a Judge issues a ruling after a divorce trial. The decision is based on what is equitable and/or in the best interests of the parties and/or children at the time of the divorce. Certain matters, such as property division, are final and are never modified. The reason that property division is not modified, absent a fraud upon the court, is that both parties to a divorce need to fully be cognizant of their assets and liabilities so that they can best move forward with their lives. If it was possible to change how the property was divided, it would be impossible to move forward or plan for the future. Issues such as custody, parenting plans or child support are modifiable in order to ensure that the best interests of the children are always being met. In addition, the Courts recognize that the income of child support Payors or Recipients can change.


What Can Be Modified?

Whether or not a portion of your Agreement or the Decree can be modified depends on whether that issue merged with the Judgment or Survived as an Independent Contract. In layman’s terms, merger basically means it is modifiable and survived basically means it is not modifiable. Property division always survives. Child custody, child support and parenting plans are always merged and always modifiable. Alimony is a hybrid as it can either survive or merge.

Legal Standard for Modification

The legal standard is a phrase meaning the level of proof required for the Court to rule in your favor. To modify custody or parenting plans, you must have a material change of circumstances to go to court regarding a modification and what you are requesting be ordered/modified must also be found to be in the best interests of the children. This material change of circumstances can equal a major geographical move, a job change that affects the current custody arrangement, the desires or needs of the children changing, a parent becoming addicted to drugs or alcohol or anything else that may make the current arrangement not in the best interest of the children. Talk to a qualified attorney first to determine if your circumstances warrant a modification to avoid unnecessary time in court. [Read more...]

New Massachusetts Child Support Guidelines Effective August 1st

posted by Eric Schutzbank

Under Massachusetts law, the Child Support Guidelines must be reviewed every four years to determine if revision is required.  The Chief Justice of the Trial Court appoints a Child Support Guidelines Task Force every four years for this purpose.  The Court has approved revised Child Support Guidelines which take effect on August 1, 2013.  The Child Support Guidelines are used by Trial Court judges in setting temporary, permanent or final orders for current child support, in deciding whether to approve agreements for child support, and in deciding cases that are before the court to modify existing orders.  The Trial Court recently announced these changes and summarized the key changes.  The goal of the task force was to analyze the relevant data and produce revised guidelines based on the current economic climate for families raising children in Massachusetts.  The review process included input from the public and the bar, and reviewed case files, economic analysis, as well as judicial and staff commentary.   The Guidelines were last revised and promulgated in 2009.  Additional information on the quadrennial review of the state’s Child Support Guidelines can be found at http://www.mass.gov/courts/childsupport/index.html.  What follows below is a statement from the a press release from the Chief Justice of the Trial Court listing a summary of the most important changes.

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Family Law: Parenting Through Your Divorce

posted by Eric Schutzbank

Our children are an integral part of our lives and keeping them safe is what parenting is all about.  Parenting together after divorce presents new challenges to an already difficult process, but navigating painful emotions to maintain a united front is an essential part of the job.  The bottom line is, kids feel healthiest when their parents get along.

Breaking the News

Depending on age, discuss the process openly in your family.  If possible, include both parents in the discussion.  Emphasize that while the family is changing, it is not ending.  Divorce means that a marriage is over, it does not mean that a parent’s relationship to his or her child is over.  Your children should feel secure that both their parents love them and neither parent will leave their lives.  Make sure they understand that the divorce is not their fault, that there is nothing that they can or should do to change things.  Remember to answer their questions with as much care and honesty as possible.  They will probably have quite a few questions, and answering them, repeatedly if necessary, will help them regain the sense of security that they’ve lost.  [Read more...]

Three Ways to Protect Your Credit During a Divorce

posted by Eric Schutzbank

The emotional aspect of divorce often makes it difficult to focus on the details of what needs to take place. One of the areas that is often overlooked is your credit rating. How can you protect yourself? Consider three tips.

1. Take inventory. Pull your credit report to get an idea of everything that is out there. Be aware that some lines of credit may not be reported to a credit bureau. For example, you may have a credit account with your dentist office or other private service provider. Look through past records to try to identify any creditor you may have overlooked that is not on your credit report. You should also find out if your spouse has credit accounts with a private service provider that may be considered marital debt. [Read more...]

What is the time frame on indictment while incarcerated in Massachusetts?

My husband was arraigned 60 days ago and they have been keeping him on 5000 cash bail . I am questioning if there is a time limit on indictment and should he have to be let out by now ?

Attorney Answer: There is no minimum time frame for which the Commonwealth has to indict your husband.  The only requirement is that he be brought into Court every thirty days.  Your husband’s attorney can force the Commonwealth to show that they have probable cause for the charges.  If sufficient time passes, your husband’s attorney can move to reexamine bail and reduce it to personal recognizance based on the Commonwealth’s failure to indict in a timely manner.  Depending on the strength of the case and your husband’s criminal record, there may also come a point where he may want to enter into a plea for time served.  Without knowing the facts of the case and more about your husband’s record and history, I cannot be any more specific.  I suggest you speak with his attorney who should be able to answer your questions so long as you are not the named victim in the case.  Good luck!

Two things you need to know before you divorce

For Massachusetts residents, here are two important areas of divorce law you should be aware of:

Property Division

Pursuant to Massachusetts General Law Chapter 208 Section 34, property is divided in an equitable manner (this is often but not always equal) based on a series of factors that include (but are not necessarily limited to) the length of the marriage, the vocational skill or employment capability of each spouse, the financial and non-financial contribution of each spouse to the marital estate, the source of the capital contributions, the conduct of each spouse throughout the marriage, and the age and physical health of each spouse. The Court does not simply look at who was the “breadwinner” or source of income or finances during the marriage.  Marriage is viewed by the Court as a partnership and things like who cared for the children and other non-financial contributions are taken into consideration.

Alimony

Alimony is not the same as child support.  It is based mostly on need.   There are three basic types of alimony: General Term, Rehabilitative; or Reimbursement.  Reimbursement alimony is awarded where one spouse made a major financial contribution or sacrifice so the other spouse could better themselves (usually through education or employment).  Rehabilitative alimony is awarded where a spouse needs assistance getting on his or her “financial feet” because they have been out of the work force for some reason or maybe are still in school.  General Term alimony is spousal support based on the same factors as property division plus financial need for the recipient and ability to pay of the payor.

A divorce can be an emotionally trying and painful process. We are a skilled and experienced family law firm who will make sure the legal aspects of your divorce doesn’t compound your troubles. Call or email us to schedule your consultation.

Will I be entitled to anything when we divorce?

Additional Info:  We have been married for 6 months and I realize it was a mistake and want a divorce. We got married because I am pregnant with his child. We rent an apartment in Lowell. He has some money in savings, I do not.

Attorney Answer:

Once the child is born, you will be entitled to child support assuming he earns more than you and you are the primary custodial parent of the child.  With respect to asset division, this is a short term marriage, so it is likely that the Court would look to put the parties in the financial situation they were in before the marriage (in other words you each keep what you have).  That being said, if you need to move and he has more in assets and earnings, it is possible you could receive some money to assist with your move.

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Building a successful law practice in today’s competitive market requires a solid business plan, knowledge of the law, and a polished marketing strategy. Many lawyers have successfully transitioned from student or employee to firm owner and are now enjoying the benefits of a successful law practice. You can join their ranks, learn from their experience, and acquire their keys to success by attending this program. Our team of experts features mostly Suffolk alumni, some of whom are seasoned and others who are relatively new to practice or their own practice. [Read more...]