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November 2012 Archives

Problems with Service of Summons and Complaint for Divorce

In practice, upon the filing of a Complaint for Divorce, Modification, etc., and our receipt from the court of the original Summons, we often effectuate service of Summons and Complaint on the opposing party by mailing the original Summons, with a copy of the Complaint and the Track Assignment Notice, to the opposing party's attorney.  This way the opposing party, in the privacy of his or her attorney's office, can sign the Acceptance of Service paragraph of the Summons before a Notary Public.  This formally puts the Defendant on notice of the filing of the Plaintiff's lawsuit.  It satisfies the requirement that the Plaintiff serve the Defendant with notice.  But it also eliminates the embarrassment of a Process Server, Constable or Deputy Sheriff having to formally serve the opposing party in person, at work, in the presence of strangers, etc.  Problems can arise, however, if there is a delay in opposing counsel having the opposing party come into his or her office to sign the Acceptance of Service paragraph of the original Summons, especially in cases involving a Complaint for Divorce.

Promoting Efficient Discovery in Arbitration: the ICDR Guidelines Concerning Exchanges of Information

Countries with different legal traditions have vastly dissimilar approaches to discovery and the exchange of information. Whereas common law countries (and the U.S. in particular) favor broad discovery and the production of vast amounts of documents, European and Latin American countries generally disfavor that approach and seek to limit document production. Because of these differences, disputes as to the scope of discovery in international arbitration can be contentious, expensive, and very time-consuming.

Well-Tailored, But Does It Fit?

Do "tailored remedies" always fit? The doctrine of spoliation recognizes that "a party who has negligently or intentionally lost or destroyed evidence known to be relevant for an upcoming legal proceeding should be held accountable for any unfair prejudice that results." Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 234 (2003). Judges should "impose the least severe sanction necessary to remedy the prejudice to the non spoliating party," which provides latitude to impose the sanctions proportionate to the nature of the spoliation. See Keene, 449 Mass. at 235; Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 550 (2002). To the extent that destroyed evidence merely prejudices, but does not foreclose, another party's ability to prosecute or defend a claim in the litigation, certain evidence may be excluded as a result. Fletcher, 437 Mass. at 550.

Registering a Foreign Child Support Order in Massachusetts

Registering a child support order that was obtained in another state or even in another country is accomplished in Massachusetts by following the procedure outlined in M.G.L. c. 209D. Otherwise known as the Uniform Interstate Family Support Act ("UIFSA"), this statutory scheme allows petitioners to register and enforce child support orders here in Massachusetts even though they were obtained in another state or country.

Orders to Vacate the Marital Home

In many divorce cases, when one party tells the other that the marriage has irretrievably broken down and there is no chance of reconciliation, the other party will voluntarily vacate the marital home.  Often the primary caretaker of the minor children remains in the marital home with the minor children, and the other party moves out voluntarily to establish a second household in contemplation of engaging in a parenting plan that is in the best interests of the minor children.  But what happens when the other party does not voluntarily vacate?  What recourse is available to the requesting party to ask a Judge to intervene and issue to the opposing party orders to vacate the marital home? 

Pets Now A Consideration In Connection With Abuse/Harassment Prevention Orders

Signed into law on August 2, 2012 and effective October 31, 2012, Massachusetts now has new legislation applicable to the care and custody of domesticated animals (i.e., the family pet) in connection with abuse prevention/harassment orders, a/k/a restraining orders, issued under M.G.L. c. 209A. 

Australia As An Emerging Arbitration Venue

Australia may be the seat for many an arbitration in the next few years, thanks to a concerted effort by both the Australian government and the Australian Centre for International Commercial Arbitration (ACICA) to promote their country as the next up-and-coming venue in the world of international arbitration.

Registering a Child Support Order from Another State in Massachusetts

Registering a child support order that was obtained in another state or even in another country is accomplished in Massachusetts by following the procedure outlined in M.G.L. c. 209D. Otherwise known as the Uniform Interstate Family Support Act ("UIFSA"), this statutory scheme allows petitioners to register and enforce child support orders here in Massachusetts even though they were obtained in another state or country.

Demystifying the Massachusetts Appellate Process

Often attorneys and clients think of the appeals process as an abyss - a long, uncertain process where they wait many months (or years) for a final resolution of their legal case.  Although a typical trip to the Massachusetts Appeals Court is by no means quick, the process is ordinarily not too complicated.

Obtaining Discovery From Massachusetts Witnesses For Use In An Out-of-State Action

It is not uncommon for litigants in proceedings pending outside of Massachusetts to need documents or testimony from witnesses who reside in Massachusetts.  Even when the witness is willing to provide the requested information voluntarily, it is wise to serve a subpoena to minimize the delay if the witness changes his mind and decides not to cooperate.  Indeed, even a "friendly" subpoena carries the threat of contempt sanctions for noncompliance and therefore serves as a powerful deterrent if the witness gets cold feet.  A subpoena also has the advantage of preventing the witness from appearing predisposed to provide evidence favorable to the requesting party as may be the case if the evidence is voluntarily provided.

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