Unfortunately, attorney fees, even reasonable attorney fees, can be expensive.  The retainer required by a lawyer to be hired for a case can be significant.  For some, the size of a retainer precludes a party from being able to afford crucial legal services.  For others, tendering payment of a retainer reduces their savings to negligible amounts.

In light of this reality for many of you who are struggling during these challenging economic times, I would like to introduce a new option in the Massachusetts Probate and Family Courts known as Limited Assistance Representation.

Limited Assistance Representation (also known as LAR) describes a new way for clients and attorneys to divide up responsibilities and reduce legal fees.   It occurs when an attorney represents or assists a client with part, but not all, of the legal matter. The attorney and client enter into a detailed agreement defining what tasks the attorney will be responsible for and what tasks the client will be responsible for.

For example, I can continually provide you with legal advise concerning what law applies to your legal situation, what procedure must be followed, and what options are available without filing an appearance on your behalf in Court.  Furthermore, I can advocate for you in a cost effective manner by preparing all of the necessary legal documentation that the Court requires.

Another benefit that LAR offers financially challenged individuals is the ability to retain an attorney simply for selected vital Court hearings.  For example, what if there is a critical Court hearing scheduled, and you believe having an experienced litigator speak on your behalf would further advance your case.  In this case, a relatively modest retainer would be requested so that you obtain high quality representation, and give yourself the best chance of a positive outcome in Court.  Remember a Judge’s decision can impact the nature and quality of your childrens’ lives and your life from a psychological and financial standpoint.

I am enthusiastic about this recent development in the law and hope that your family and friends will take advantage of the tremendous savings available when limited legal services are required to better your circumstances in this difficult economy.

If you should have any questions regarding Limited Assistance Representation, please do not hesitate to contact my office.

As always, I stand at the ready to assist you in the areas of:

• Contested and Uncontested divorce: Parenting Plans, Alimony, Child Support
• Post-Divorce Matters: Modifications, Contempt Actions, Appeals
• Divorce Mediation: Member of Massachusetts Council of Family Mediators
• Parent-Child Mediation, Parent-Parent Mediation: to resolve family conflict and avoid separation and divorce
• Wills and Estate Planning Services: Trusts, Durable Power of Attorney, Health Care Proxy, Living Will
• Probate of Estates with and without Wills, Will contests
• Guardianships, Conservatorships,
• Real Estate: Purchase and Sale Contracts, Real Estate Closings, Seller’s Deed, Homestead Protection
• Bankruptcy and other debt matters
• Consumer Protection matters
• Commercial and Personal Deb Collection
• Civil Litigation
• Adoptions, Care and Protection matters, Issues with Dept. for Children and Families
• Criminal Defense, for adults and juvenile defendants (CHINS, delinquency, etc.).

Please note that my real estate agency, Jewel Realty, has grown to five agents, and we can assist you with our vast experience, reasonable commission rates, and hundred of dollars of free legal services.  Feel free to call any time for a courtesy appraisal.

Finally, next month my newsletter will address an exciting, revolutionary way of expanding my mediation practice (not an exaggeration).  Until then, may you and your families be well.

Introduction

Upon divorce, the parties expect closure as to the division of the marital property. All clients ask: how will this be accomplished and how can they position themselves for a desirable outcome? This article highlights the basic structure of a Massachusetts property division. The court is charged with the responsibility of providing an equitable division of marital property if and when the parties cannot agree on such a division themselves.

This article offers generalized insight as to how the parties and the court may interpret the meaning of an “equitable” distribution. Please note than unlike matters affecting support or custody as may be revisited as substantial and material changes in circumstances warrant, nearly all marital property divisions are final, once ordered.  In Massachusetts we turn our attention to the statute, Mass. Gen. Laws Ch. 208 § 34.

In General

What is “equitable” distribution?

That which the Court finds to be fair and reasonable under the circumstances. Note that equitable may well be something other than a 50/50 split; thus “equitable” is not necessarily “equal.” The court considers the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of the parties and the opportunity of each for future acquisition of capital assets and income.

What is the scope of divisible assets?

Let us look at the statutory language:

“Upon divorce, court may assign all or any part of the estate of the other.” The use of the word ‘estate’ is important for two reasons: first,  the property subject to division is not limited to property acquired during the marriage, rather, it includes ALL property whenever and however acquired. (Rice v. Rice, 372 Mass. at 400); secondly, “estate” includes, but is not limited to all vested and nonvested benefits, rights and funds accrued during the marriage, extending to anything and everything of value.

Massachusetts courts apply an expansive view of divisible assets, both as to time and title. This means that the Court may award the property brought into the marriage by Spouse A, to Spouse B, if it finds that doing so is “equitable”.

Pre-Marital Assets

Examples where premarital property was awarded to the other spouse:

Baccanti v. Morton, 434 Mass. 787, 792 (2001): Upon a showing that both spouses made equal contributions to the marital partnership, including equal contributions to the assets owned by the husband prior to the marriage, the court made a 50/50 split of the husband’s premarital assets.

Moriarty v. Stone, 41 Mass. App. Ct. 151 (1996): The appeals court held that the parties’ respective contributions to the accumulation, preservation and appreciation of various premarital assets during 10 years of premarital cohabitation were a factor. Here, despite the fact that the premarital assets were held in the husband’s name only, the court looked to the parties contributions during premarital cohabitation. This case is especially compelling for same same sex couples unable to marry prior to Goodridge v. Dep’t. of Public Health, 440 Mass. 309 (2003).

What can we learn from this?

All the facts are needed, i.e., is there a pre-nuptial agreement? What are the premarital assets a client brings to the marriage? In a short-term marriage, the most likely outcome is the spouse bringing them to the marriage will retain those premarital assets. In a mid to long-term marriage, premarital assets kept segregated from the marital estate could be divided between both parties under the law.

Valuation Dates

As of what date are assets identified and valued for purposes of equitable distribution?

Generally, as of the date of divorce. However, other dates may be more suitable. Davidson v. Davidson, 19 Mass. App. Ct. 364, 370 (1985) specifically left it open to argue other dates should control.

In Savides v. Savides, 400 Mass. 250 (1987), husband’s estate increased dramatically post-separation (1974-1985), divorce in 1985. As the wife did not contribute to this increase in value, she had no claim to the increase.

Similarly, short-term, childless marriages are compelling arguments for the date of separation, not the date of divorce.

How to Prevent the Sale, Transfer, Removal or Concealment of Marital Property by the Other Spouse

Upon filing a divorce, Supplementary Probate Court Rule 411 prohibits the other party from disposing of assets subject to division prior to a final Court resolution.

What a party may NOT do, while the case is pending:

A party may NOT sell, transfer, encumber, conceal, assign, remove or dispose of property except: 1) in the ordinary course of business or investing, or 2) for attorney fees, absent a court order or written assignment of the parties. Neither party may incur new debt, change life insurance or retirement beneficiary designations or remove the other party or the children from any insurance policy.

What else can be done to secure marital assets while the case is pending?

In egregious cases, Counsel may bring an attachment (per Mass. Dom. Rel. P. 4.1) on real estate and tangible items, or, trustee process (per Mass. Dom. Rel. P. 4.2) on bank accounts, brokerage accounts, and retirement accounts – – when there is significant fear that the other party will transfer or secret marital assets despite the Rule 411 automatic restraining order.

Legal Services at the Law Offices of Gary M. Horwitz

We earn the privilege of your business in everything we do. We understand that property division becomes permanent, and that every case comes with its own set of unique circumstances. We promptly answer our client’s questions so they may make their most informed decision on all relevant matters. Please call our Chelmsford office today for a free consultation, (978) 250-4646

I have a Blackberry, an I-Phone, a laptop, a personal digital assistant (PDA), a “smart phone”, a thumb drive, a Twitter and a Facebook account, so what do I need to know about my confidential information as I proceed in my divorce?

Anyone contemplating a divorce must proceed with caution when using today’s technology to transmit, store, or obtain information. Such information may be discoverable through legal means that could prove damaging to your desired results.

What is electronically stored information?

It is information found in global positioning systems (GPS), digital printers, e-mail accounts, removable hard drives, thumb drives (aka sticks), cell phones, backup systems, digital cameras, DVD’s, servers, computers, certain types of copiers in addition to data easily found on social networking sites such as Facebook and Twitter. This includes computer-dating websites where “profiles” of an individual have been posted.

A warning for divorce litigants, “Anything posted can be used against you.”

Once social media personal profiles are created, the comments, pictures and videos that are posted to websites are very difficult to erase. While some websites offer privacy options, there is no such thing as 100% privacy. Since your friends have access, they can share it with other friends, which means others have access to these particulars of your life. In an article written by Attorney Sarah E. Murray, of Connecticut published in the American Bar Association, Family Advocate Section, Vol. 34, No. 1, Summer 2011, the warning to divorce clients takes this form:

“When it comes to social networking, any information you post (or that your friends post about you) can be used against you in your divorce case.”

How can I protect my information and what should I tell my Attorney?

Early in your divorce or custody matter, have a frank discussion with your attorney about the issues in your case and whether electronically stored information may affect your desired result. Stored information is highly relevant when issues involve infidelity, financial misconduct, child custody, substance abuse, verbal abuse and dishonesty. One of the best ways to protect your personal information is to limit what you put on the internet and in text messages.

When writing an e-mail to your spouse, assume that a judge will read it. Try to limit the message to essential matters and write in a collaborative tone. It would be helpful for you not to use shared computers such as those in your home, at work or at the library because there is no reasonable expectation of privacy. Securely store your electronic devices, and install password protections on all devices. Change your passwords periodically, and avoid passwords required to be written down. Since you are protected by the attorney client privilege, inform your attorney of any sensitive information you have posted to the internet, through a text message, or information existing in a social media.

What are examples of electronically stored information obtained legally?

During the discovery phase of your case, your attorney can request copies of e-mails you have exchanged with your spouse. Bear in mind that obtaining electronic information does not necessarily make it admissible. The party offering such evidence must authenticate it to establish that a certain person is the author of the message; this may be done during a deposition. Another option for more complicated cases might include the use of a computer forensic expert.

What actions in retrieving electronic information are considered potentially illegal?

In general, if you do not have an ownership interest in the storage device, you do not have lawful access to the stored information without the consent of its owner. There may be exceptions to this general rule, so the best way to know you are obtaining information legally is to ask your attorney.

Using spyware to capture information about suspected infidelity or financial misconduct can run afoul of state and federal law. Likewise, recording your spouse’s telephone conversation or even your person-to-person conversation is illegal, without their express consent.

What information can I dispose of?

There are penalties (sanctions) for what is known as “spoliation”. The accusation is that a person knowingly intended to destroy or alter relevant information to the detriment of the other side. Many jurisdictions have rules and laws that require preservation of evidence for present or future litigation that includes divorce litigation. Before destroying or tampering with any electronically stored information, consult with your attorney about evidence preservation.

What must I know about electronic information in my divorce?

Personal information that is kept confidential by you, remains confidential until you disclose it. Pictures and text comments posted to a social media website such as Twitter or Facebook, by you or others, risks disclosure. Attorney-client communication should be open and honest concerning all matters, including electronic personal information. Using computers that are shared in your home, at work or at the library can be like leaving information on the kitchen table for all to read. Communicate with your spouse respectfully, factually, and succinctly. Use your own personal device, change your passwords periodically, and use encryption software to safeguard personal information.

Reference:

Murray, S.E., Electroncially Stored Information; How e-mail, texting, and your Facebook friends can affect your divorce. Family Advocate, American Bar Association, Vol. 34. No. 1, (Summer 2011).

Why is this important to know?

This reform is not presently the law; however, it is currently being debated in the Massachusetts legislature. It is important to know because the current alimony law makes it difficult to predict the way Courts will decide on the basic concepts of “needs” and “ability to pay” when one spouse in need requests support from another spouse with the ability to pay.

What is an example of the new Alimony Term Limits?

The proposed new law simplifies the award of alimony so the ultimate outcome on issues of alimony may be more predictable than in the past. By example, the new law more clearly distinguishes the duration of a marriage. Use of previous concepts such as, “short” or “long term” marriages is proposed to be replaced with clearer elapses of time, in 5-year increments. Thus, “If the duration of the marriage is ten years or less, but more than five years, general term alimony shall be no greater than sixty percent of the number of months of the marriage.”

What if the payor remarries, would the Court consider the new wife’s income?

Under the current law, the ability to pay might include the income a payor’s new wife brings into the new marriage. Under the proposed new law, the income of a payor’s new spouse will not be considered in any alimony modification action.

What if the recipient spouse begins to cohabitate with another person, or remarries?

General Term Alimony would be suspended, reduced or terminated when the payor spouse shows the recipient has maintained a common household with another person for a continuous period of at least three months. Alimony will end should a recipient spouse re-marry.

Would the amount of alimony be limited?

Yes, the amount of alimony should generally not exceed the recipient’s need or 30 percent to 35 percent of the difference between the parties gross incomes established at the time of the order being issued.

Would a payor’s second job or overtime income be excluded from a determination of ability to pay?

Yes, under the proposed new law, it would be presumed immaterial to an alimony modification if the payor worked more than one full time job, or, if their second job or overtime income occurs after the initial order for alimony.

What else can I do to learn more?

Phone the Law Offices of Gary M. Horwitz at (978) 250- 4646 to learn of other changes in the proposed new alimony law, and how those changes may affect your individual circumstances.

Why is this important to know?

Because it is one of the easiest, most affordable actions a homeowner could take to protect their precious equity in their primary residence.

What does this new law do for me?

It protects the equity in a person’s primary residence for up to $500,000 from most creditors, or other parties, in the event a homeowner is sued. It prevents the creditors who sue from “attaching” and subsequently “levying” their claim upon an execution of sale.

How do I take advantage of this protection?

The procedure is simple. A Homestead form is filed at the homeowner’s county registry. A Declaration of Homestead is prepared and recorded upon payment of a state recording fee. Only one person in a married couple needs to file to protect him or herself, and this act can serve to protect the other spouse, too.

Does this protect my primary residence from all creditors?

No. The law does not protect against claims by mortgage holders used to purchase the primary residence, as may include first and second mortgages. Nor does the law protect against claims related to local, state and federal taxes, assessments, claims and liens, judgments to pay support of a spouse or minor children, or debts contracted prior to the homeowners acquisition of the homestead. There may be other actions for which there is no protection, thus, you should ask your legal representative to review your particular circumstances with you.

What is Automatic Homestead?

This new law automatically provides protection for up to $125,000 of home equity for all homeowners, on their primary residence, even if the homeowner(s) have not yet filed a Declaration of Homestead. If you meet the requirements for the 125,000 limit of protection, nothing needs to be filed. However, if you choose to protect your equity up to $500,000, you must take action.

What if I file and then transfer the home to another family member?

Transfers among family members will not terminate a previously declared homestead even if the homestead is not reserved in the deed. Under the former law, homestead rights would have terminated unless the homestead rights were explicitly retained in the transfer of title.

Does Homestead protection remain in force if I re-finance?

Yes, provided that as the owner of the property, you intend to occupy the property you are refinancing as your principal residence.

What if I receive insurance proceeds from fire or other property damage?

So long as the proceeds relate to your primary residence at the time of the damage, those proceeds would be protected for up to two years.

What if I have put my primary residence in a trust?

The new law changes the old law completely. The new law provides protection to beneficiaries of trusts that hold title to the residence, so long it is the beneficiaries’ primary residence.

I am 62, or older, OR, I am disabled, what do I do to obtain protection?

Ask us to explain “Elderly/Disabled Homestead” to you. This protection is available only to the person who files.