Parenting Education Programs

Massachusetts Probate and Family Courts mandate that divorcing parties attend a Parenting Education Program before a case is scheduled for either a Pre-Trial Conference or Final Hearing unless attendance is waived by the court.

The course is titled "Understanding the Effect of Divorce on Children".  The objective is to assist divorcing parties to identify parenting strategies to promote the emotional well-being of their children while minimizing and protecting them from the disruption, acrimony and discord that so often accompanies divorce.

The course is offered in various communities and consists of 2 sessions of 2 ½ hours each, for a total of 5 hours.  The cost of the programs may vary from center to center, but cannot exceed $80.00  in total for each parent. The fee may be reduced if a party is indigent or if the Court waives the fee.

Each parent must make his/her own arrangements for attendance at one of the various centers offering the program.  Although parents may attend at the same center, they must attend separate sessions.  

The Court may waive the attendance requirement for one or both parties, but will usually do so only upon a demonstrated showing of chronic and severe violent behavior that precludes negates safe parental communication; language barriers; institutionalized or other unavailability of a party; failure of one party to complete a program; or where justice otherwise requires.

To obtain a waiver, a Motion must be filed with the Court and sufficient facts presented at the hearing on the Motion.  Waivers are rarely granted.  The Court may impose sanctions against a party refusing to attend the parenting program.

Ref. http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/standing-order-4-08-parent-education-attendance.pdf

The following link contains a list of Parent Education Providers, as of May 2011: http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/parentedprovidersbycounty.pdf

For more information, contact us at (617) 232-7222 or visit our website at Bostondivorcelaw.net

Massachusetts Victim Bill of Rights

---

Massachusetts Victim Bill of Rights

In the event a criminal proceedings is initiated againts your attacker, the Massachusetts Victim Bill of Rights provides the following additional rights:

The Right to Information on the Criminal Justice System:

•  You have the right to be informed of how a criminal case progresses through the system, what your role is in the process, what will be expected of you, and why.
• You have the right to be informed of rights and services for victims in the court process.
• You have the right to assistance in applying for social services, financial assistance and certification to receive information about an offender.

The Right to Information on the Criminal Case Involving You:

• Upon request, you have the right to be updated on significant developments in the case.
• You have the right to be notified in a timely manner of any changes in schedule for court appearances for which you have been ordered to appear.
• You have the right to be notified of the final disposition of the case, including an explanation of the type of sentence imposed and a copy of the conditions of probation, if any.
• You have the right to be notified by the Supervising Probation Officer whenever an offender seeks to change a restitution order.

The Right to be Heard and Present at Court Proceedings:

• You and your family members have the right to present a Victim Impact Statement to the court about the physical, emotional and financial effects of the crime on you and about your opinion regarding the sentence to be imposed.
• You have the right to submit your Victim Impact Statement to the Parole Board as part of its records on the offender.
• You have the right to be heard at any other time deemed appropriate by the judge.

The Right to Confer at Key Stages in the Court Process:

• You have the right to confer with the Prosecutor before the start of the case, before a case is dismissed, and before a sentence recommendation is made.
• You have the right to confer with the Prosecutor whenever a defense motion is made to obtain your psychiatric records or other confidential information.
• You have the right to confer with the Probation Officer about the impact of the crime on you before the officer files a full presentence report on the offender with the court.

The Right to Financial Assistance:

• You may be eligible to apply for Victim Compensation for certain out-of-pocket expenses, such as medical, counseling or funeral costs, or lost wages incurred as a direct result of the crime.
• You have the right to a witness fee for each day that you are required to be in court.
• You have the right to request that the judge order the offender to pay restitution for your crime related losses, and to receive a copy of the offender's schedule of restitution payments.
• You may be able to pursue a civil lawsuit for damages caused as a result of the crime by consulting a private attorney.

The Right to be Notified of an Offender's Release:

• Upon request, you have the right to advance notification whenever the offender is moved to a less secure correction facility.
• Upon request, you have the right to advance notification whenever the offender receives a temporary, provisional or final release from custody.
• You have the right to be informed by the Parole Board of the offender's parole eligibility.
• You may be eligible to get additional information about the offender, such as a criminal record or the offender's compliance with the terms of a sentence.

The Right to Other Protections in the Criminal Justice System:

• You have the right to request confidentiality for yourself and family members during the court proceedings for personal information, including home address, telephone number, school and place of employment.
• You have the right to protection by law enforcement from harm or threats of harm as a result of you cooperation with the court process.
• You have the right to a safe waiting area which is separate from the defendant and the defendant's family during court proceedings.
• You have the right to a prompt disposition of the case involving you.
• You have the right to request employer and creditor intercession by the prosecutor's offce if the crime or your involvement in the court process causes problems with an employer or in meeting financial obligations.
• You have the right to have any property seized as evidence returned to you as soon as possible once it is no longer needed for law enforcement purposes.
• You, as a homicide survivor, have the right to possess in the courtroom an 8x10 or smaller photograph of the victim so long as it is not displayed.

.

The complete text of the Act can be found at http://www.malegislature.gov/Laws/GeneralLaws/PartIII/TitleIV/Chapter258b

CORI REFORM ACT

Criminal Offender Record Information (CORI) Reform Update

CORI stands for Criminal Offender Record Information. It is the listing of criminal convictions, arrests, and open criminal cases.

On August 6, 2010, Governor Patrick signed into law an act reforming the CORI law in order to reduce the stigma and resulting difficulty of those with certain criminal records to obtain employment and housing.

The law makes major changes to the way employers and others obtain access to Criminal Offender Record Information (CORI) and provides important protections to individuals with criminal records. Some parts of the law, such as the provision that prevents certain employers from asking whether an applicant has been convicted of a criminal offense on an initial written employment application, become effective on November 4, 2010.  Other parts of the law, such as the provisions that reduce the waiting periods for sealing records, will become effective on May 4, 2012.

Highlights of the CORI reform bill include:

Effective May 4, 2012 the waiting period for sealing CORI records is reduced as follows:

Criminal cases that result in non-convictions (CWOF’s) will no longer appear on CORI reports

Misdemeanor convictions can be sealed 5 years after the conviction or any period of incarceration, whichever is later

Felony convictions can be sealed 10-year after the conviction or any period of incarceration, whichever is later.

Sex offense:  15 years after the conviction or any period of incarceration, or after the obligation to register as a sex offender ceases, whichever is later.  Sex offenders classified as Level 2 or Level 3 will not be eligible to have their convictions sealed.

To be eligible for sealing, an applicant must not have a conviction for any crime during the above waiting periods.

Convictions that are eligible to be sealed will automatically not be sent in CORI reports

the waiting period will begin immediately after release from prison

The law “bans the box” on initial written employment applications.  Except in instances where an employer is prohibited by law from hiring individuals because of criminal convictions, employers in Massachusetts will no longer be allowed to ask whether an applicant for a job has been convicted of a criminal offense on an initial written employment application.  For further information regarding “ban the box” provisions, which will be enforced by the Massachusetts Commission Against Discrimination, please see http://www.mass.gov/mcad/documents/Criminal%20Records%20Fact%20Sheet.pdf.

Sealed records will never appear on a CORI report, and the report will not show that a sealed record exists.

Individuals interested in requesting that their criminal records be sealed must contact the Massachusetts Office of the Commissioner of Probation (OCP) at 617-727-5300.  Additional information is also available at http://www.mass.gov/courts/probation/forms.html.

Standard CORI access for employers and landlords.  

Employers and landlords will have standard access to CORI via the Internet, for a fee, for the purpose of screening current and prospective employees, volunteers, and tenants.  The standard access CORI report will contain the following information:

Convictions:

All murder, manslaughter, and sex offense convictions.

Any felony convictions that occurred within the last 10 years or for which the applicant was incarcerated within the last 10 years; and 

Any misdemeanor convictions that occurred within the last 5 years or for which the applicant was incarcerated within the last 5 years.

Note: If any criminal conviction qualifies to be included on the CORI report under the above rules, then all prior convictions will appear on the CORI report as well, regardless of when they occurred.

Open cases:

Any criminal charges pending as of the date of the request, including open cases that have been continued without a finding.

Sealed records will never appear on a CORI report, and the report will not show that a sealed record exists.

Employers who make hiring decisions based on official CORI reports within 90 days of receiving the reports shall be held harmless in negligent hiring lawsuits that allege additional criminal background checks should have been conducted.

Additional CORI access for employers and organizations with specific requirements.  Employers or organizations that require additional access to CORI because of a statutory, regulatory or accreditation requirement will receive the necessary access.  Employers or agencies that received CORI access under a federal or state law that authorized or required them to conduct CORI checks prior to November 4, 2010, will continue to receive access.  Examples of employers that fall within this category include schools, camps, banks, security guard companies, hospitals, day care centers, nursing homes, assisted living facilities, councils on aging, public housing authorities, security systems installers, amusement device operators, and insurance companies.

Individual access for self-auditing purposes.  Individuals may obtain a copy of their entire CORI report and may also request, free-of-charge every 90 days, a self-audit that identifies all agencies, organizations, and individuals that have requested their CORI report.  This self-audit will not include any requests for the individual’s CORI made by law enforcement or criminal justice agencies.  More frequent audits may be requested for a fee.  Continue to monitor this web site for more details about this service.

The Complete text of An Act Reforming the Administrative Procedures Relative to Criminal Offender Record Information and Pre- and Post-Trial Supervised Release is available at http://www.malegislature.gov/Laws/SessionLaws/Acts/2010/Chapter256

For further assistance in sealing your CORI record, please contact the Brookline Law Offices of Harold D. Levine at 617-232-7222 or visit our website at HaroldLevineLaw.com

PERSONAL INJURY PROTECTION (PIP)

If you have been injured in an automobile accident, it is critical that  that you understand your rights under the Personal Injury Protection (PIP) statutes.


If you have been injured in a car accident, you may pursue a Massachusetts Personal Injury Protection (PIP) claim for lost wages, medical bills and replacement services regardless of who caused the car accident. This is known as “no fault insurance.”

Types of Massachusetts Personal Injury Protection Claims

PIP provides compensation for up to $8,000.00 for people injured in a motor vehicle accident for three types of out-of-pocket expenses:

Medical bills: PIP covers reasonable and necessary medical expenses incurred within two years of the car accident.

Lost wages: PIP covers 75 percent of lost wages caused by injuries you sustain in the automobile accident. However, if you are eligible for a disability plan at work, you will receive only 75 percent of the difference, if any, between the disability plan and the amount you would otherwise be entitled to under PIP.

Replacement services: PIP pays for reasonable expenses to pay non-family members to perform services that the injured person would otherwise have performed for the benefit of himself and/or family members of his household.

Health Insurance and PIP Claims

If you are injured in a car accident and you have health insurance, Massachusetts personal injury protection will pay up to $2,000.00 towards your medical bills. Any remaining medical bills must be submitted to your health insurer in a timely fashion (if not, some health insurance companies may deny payment of your bill). However, PIP may be available to pay medical bills not covered under your health insurance including co-payments.

You must also coordinate payment of your medical treatment between the health care provider (doctor) and health insurer.

Health insurance only impacts the payment of medical bills in Massachusetts personal injury protection claims. Massachusetts personal injury protection remains available for the payment of lost wages and replacement services until the $8,000.00 in PIP coverage is exhausted.

Duty to Cooperate

You must cooperate with the PIP insurer in order to obtain PIP benefits.

PIP Application: You must fill out, sign and submit a PIP application to the insurance company. (The insurance company will send the PIP form to you.)

Medical Examination: The PIP insurer has the right to have you examined by a doctor selected by the insurer.

Medical records, bills and lost wage information: You must submit evidence of your losses to the PIP insurer and authorize the insurer to obtain such information that is pertinent to the claim.

Statement: The PIP insurer has the right to obtain your statement under oath. This is called an examination under oath (“EUO”). If the statement is not taken under oath, you are not obligated to give a statement.

Failure to cooperate with the insurance company may result in denial of your claim.

The duty to cooperate also applies to uninsured and underinsured claims.

Massachusetts PIP

Here is additional information you should know about Massachusetts PIP claims:

Massachusetts personal injury protection is limited to $8,000.00 in coverage and does NOT cover compensation for pain and suffering. In order to obtain compensation for pain and suffering, you must pursue a bodily injury claim, uninsured claim and/or underinsurance claim, show someone was at fault, and meet other statutory requirements.

PIP does not cover people injured while riding a motorcycle.

PIP also covers pedestrians who are injured in a car accident.

Claims for PIP benefits must be submitted to the PIP insurer within two years of the date of the accident.


Below is the link to the Massachusetts statute on PIP coverage:


http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleXIV/Chapter90/Section34m

If you have questions or concerns, please contact The Brookline Law Offices of Harold Levine at (617) 232-7222 or visit our website at HaroldLevineLaw.com. 

MASSACHUSETTS ALIMONY REFORM LAW

 ALIMONY REFORM

After years of struggling with vague statutes and general guidelines, Massachusetts has finally passed long overdue alimony reform legislation. 

The new Alimony Reform Act was signed into law in September and will take effect in March 1, 2012. Previously, the alimony laws gave judges a great deal of discretion to award alimony but very little guidance. This resulted in a haphazard and conflicting maze of case law.  As a result, attorneys, trying to figure out alimony payments and duration lacked any clear formula, unlike child support calculations. 

If you currently pay or receive alimony or anticipate doing so in the future you should be aware of how this new law may impact you. The new law provides for modification of already-existing alimony obligations and sets new guidelines for future alimony orders.   

Some of the important changes include:

THE DURATION OF ALIMONY

The new law provides fixed timeframes that limit how long alimony should be paid.  These limits are based upon the length of the marriage which is measured from the date of marriage through date of service of a complaint or petition for divorce, not through the date of an agreement or judgment.

TYPES OF ALIMONY

The new alimony law provides for 4 different types of alimony: General Alimony, Rehabilitative Alimony, Reimbursement Alimony and Transitional Alimony.

1. General Term Alimony – also known as periodic alimony, consists of weekly payments made for the duration of either a definite term, or which ends upon the occurrence of a specific event, such as death of the Payor, death or remarriage of the Payee, etc.

2. Rehabilitative Alimony is designed to improve the income-earning capability of the Payee Spouse. If, for example, the Payee Spouse wishes to enroll in school to learn a trade or skill that can increase their income-earning capacity. The costs of such schooling can be ordered to be paid by the Obligor Spouse to the Payee Spouse. However, this finite sum, which can be paid in periodic payments or upon periodic events, would be limited in duration in most cases to a maximum payment period of five (5) years. Rehabilitative Alimony would also be subject to modification if there is a material change of circumstances, such as if the schooling failed to pan out as had been envisioned or planned.

3. Reimbursement Alimony consists of reimbursing the Payee Spouse for a finite sum determined based on the cost or value of the asset or sacrifice attributed to the Payee Spouse. For example, reimbursement alimony would be paid if the Payee Spouse brings significant assets into the marriage which cannot be repaid, or the Payee Spouse works and supports the household while the Obligor Spouse attends medical school, or the Payee Spouse has cared for an elderly family member in lieu of working, etc. Reimbursement Alimony is NOT subject to modification.

4. Transitional Alimony is designed to assist the Payee Spouse in the transition out of the marriage to independent living and would be based in large part on the real financial needs of the Payee Spouse. For example, transitional alimony would be paid if the Payee Spouse had given up a job and now needs short term payments until a replacement job can be found.Transitional Alimony is also NOT subject to modification if there is a material change of circumstances.

Determining Rehabilitative Alimony, Reimbursement Alimony or Transitional Alimony necessarily depends on the facts specific to that case, and are not easily subject to a formula.

Regarding General Term Alimony, the new law institutes a maximum amount of alimony to be paid

Duration of General Alimony:

(1) If the duration of marriage is 5 years or less, general term alimony shall be no greater than one-half the number of months of the marriage.

(2) If the duration of marriage is 10 years or less, but more than 5 years, general term alimony shall be no greater than 60 per cent of the number of months of the marriage.

(3) If the duration of marriage is 15 years or less, but more than 10 years, general term alimony shall be no greater than 70 per cent of the number of months of the marriage.

(4) If the duration of marriage is 20 years or less, but more than 15 years, general term alimony shall be no greater than 80 per cent of the number of months of the marriage.

(c) The court shall have discretion to order alimony for an indefinite length of time for marriages longer than 20 years.

Further, cohabitation of the recipient spouse may end alimony:

(d) General term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient has maintained a common household, as defined below, with another person for a continuous period of at least 3 months.

TERMINATING ALIMONY UPON REACHING RETIREMENT AGE

The new law includes a presumption that alimony should terminate when the payor reaches full retirement age, even if he or she continues to work beyond that age.  

COHABITATION AS A BASIS TO CHANGE ALIMONY PAYMENTS

The new law states that alimony may be suspended, reduced or terminated upon the cohabitation of the recipient spouse. The payor spouse must show that the recipient spouse has maintained a "common household" or shared a primary residence with another person for a continuous period of at least three (3) months. Among the factors that indicate the existence of a common household include statements or representations made by those residing together, economic interdependence, conduct and collaboration in furtherance of a mutual life together, benefits from the relationship, and community reputation as a couple.

CHANGES TO INCOME CONSIDERATIONS AND AMOUNT OF ALIMONY PAYABLE

The new law states that the amount of alimony paid should not exceed the recipient's need or 30% to 35% of the difference between the parties' gross incomes.  Capital gains, dividend and interest income generated by assets already divided in a divorce are specifically excluded from gross income, as is income from a payor's new spouse. The court may attribute income to a party who is unemployed or underemployed and income from a payor's second job may be immaterial.

 TIMEFRAMES FOR FILING MODIFICATION ACTIONS

Staggered times frames have been established in order to prevent the courts from being flooded with a wave of litigation from those seeking modification or termination of existing alimony orders.

Those paying alimony who want to file for a modification based on the new law must wait until:

March 1, 2013 for those who were married less than 5 years, or any payor who will reach federal retirement age (as defined in the law) before March 1, 2015.

March 1, 2014 for those married 5-10 years.

March 1, 2015 for those married 10-15 years.

September 1, 2015 for those married 15-20 years.

Those entitled to relief due to cohabitation of the recipient or attaining retirement age may file as early as March 1, 2013 regardless of length of the marriage.

  

If you are in need of further information concerning Massachusetts divorce law, contact us at (617) 232-7222 or visit our web site at http://bostondivorcelaw.net/

NEW HOMESTEAD ACT INCREASES HOMEOWNER PROTECTION

New Massachusetts Homestead Act Increases Homeowner Protection

A homestead is a statutory exemption that protects a principal residence against the rights of creditors.  This means that a homeowner who owes money for a debt has some protection against losing his home to a creditor.

In March 2011, the Massachusetts legislature enacted a new law that provides greater protection for every Massachusetts homeowner by providing an automatic homestead in the amount of $125,000.00 and “declared” homesteads that provide protection up to $500,000.00.

The following is a summary of the highlights of the amended bill:

 All Massachusetts homeowners receive an automatic homestead exemption of $125,000 regardless of whether or not a Declaration of Homestead is filed with the Registry of Deeds.

All Massachusetts homeowners are eligible for a $500,000 “declared homestead exemption” by filing a declaration of homestead at the Registry of Deeds.  For married couples, both spouses will now have to sign the form, which is a change from prior practice.

If you have already have a homestead recorded at the registry of deeds, you do not have to re-file it.  You are automatically entitled to the full $500,000 protection.

Homesteads are now available on 2-4 family homes, and for homes in trust.

The existing “elderly and disabled” homestead will remain available at $500,000.

If you have a homestead as a single person, and get married, the homestead automatically protects your new spouse.  Homesteads now pass on to the surviving spouse and children who live in the home.

Homestead protection is now available for homes kept in trusts

Homestead protection is now available for manufactured homes

You do not have to re-file a homestead after a refinance.  In the past, lenders often required homeowners to either subordinate or release homesteads.  Under the new law, homesteads are automatically subordinate to mortgages, and lenders are specifically prohibited from having borrowers waive or release a homestead.  (Note however, that those homeowners who have refinanced a mortgage in the last several years should consider recording a new homestead declaration since many refinancing mortgages contained a waiver of homestead rights.)

Closing attorneys in mortgage transactions must now provide borrowers with a notice of availability of a homestead.

  

Cautionary Note: A homestead does not prevent a creditor from attaching a home in every situation.  For example, if a homeowner causes an automobile accident while driving, is sued for $1,000.000.00.  and the damages exceed the amount of available auto insurance, the accident victim may obtain an attachment of the driver’s home.  Without homestead protection, the victim could force a sale of the home to get the equity in the house.  However, with the homestead, while the accident victim could still force a sale of the house, the first $500,000.00 in equity (or $125,000.00 if there is only the automatic homestead)) goes to the homeowner and not the victim.  This means that the victim won’t force a house sale unless the homeowner has more than $500,000.00 in equity in the home.

With the enhanced protections, every homeowner should take advantage of the homestead law and file a declaration of homestead to take advantage of the full $500,000.00 protection.  

To view the complete text of the new law, click on the following link:

http://www.malegislature.gov/Laws/SessionLaws/Acts/2010/Chapter395

If you have further questions or would like to have a Declaration n of Homestead prepared, please contact us at The Law Offices of Harold D. Levine, at (617)232-7222 or at www.haroldlevinelaw.com

Massachusetts Divorce Law - The Equitable Division of Property

In Massachusetts, property division of assets and liabilities are most often settled between the parties by a signed Marital Settlement Agreement. 

If the parties, however, are unable to agree and proceed to trial, the property award will be ordered and decreed by a Family Court Judge within the Judgment of Divorce.

Massachusetts is referred to as an "equitable distribution" state. Equitable does not necessarily mean "equal" but rather, what the court deems to be fair under all of the circumstances. 

When divorcing parties are unable to reach a settlement, the Probate and Family Court will take the following approach to dividing assets; First, it will go through a discovery process to determine which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Finally, it will order the marital assets be distributed between the two parties in an equitable manner. 

In making this determination, the court must consider a number of factors, including the following: 

a. length of the marriage; 

b. the conduct of the parties during the marriage; 

c. the ages of the parties; 

d. health; 

e. station; 

f. occupation; 

g. amount and sources of income; 

h. vocational skills; 

i. employability; 

j. estate; 

k. liabilities and needs of each of the parties; 

l. the opportunity of each for future acquisition of capital assets and income. 

The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.

Finally, but most importantly, in any case in which minor children are involved, the Family Court will always consider their present and future needs. 

Follow the link below for the complete text of the Massachusetts property division statute: 

 http://www.malegislature.gov/Laws/GeneralLaws/PartII/TitleIII/Chapter208/Section34

If you are in need of further information concerning Massachusetts divorce law, contact the Law Offices of Harold D. Levine, 1330 Beacon Street, Brookline, MA (617) 232-7222 or visit my web site at HaroldLevineLaw.com