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February 2013 Archives

Name Change After a Divorce

I recently read an article in the New York Times entitled "When the New You Carries a Fresh Identity, Too" written by Megan L. Wood that raised interesting questions about divorcing women and a name change after a divorce.  The article brought up the fact that many divorcing women are at a crossroads of their life where the divorce gives them a chance to have a fresh identity by choosing a new last name.  As the article recognizes, "[h]anging on to your ex's last name can daily conjure an unhappy past, while going back to a maiden name [they]'ve outgrown can be difficult to imagine."  The solution, for some, is selecting another, neutral name.

Tenant's Corporate Parent Insulated from Lease Default Claim; But Liable for Use and Occupancy

Last Fall, the Massachusetts Appeals Court held in OMV Associates, L.P. v Clearway Acquisition, Inc., 82 Mass. App. Ct. 561 (2012), that a lessee's corporate parent could not be reached under traditional veil-piercing principles to pay the debt of a subsidiary that breached a commercial lease.

Honey, You May Have To Testify: The Limits of the Spousal Disqualification In Civil Litigation (A Valentine's Day Blog)

In business litigation, the question of whether a party's spouse is fair game for a deposition often comes up. Sometimes, the question arises simply because a lawyer wants to demonstrate the willingness to "take the gloves off." Other times the issue arises because the spouse may be one of the only people likely to have knowledge of facts that could be central to the case. Regardless of the reason, Massachusetts lawyers should be aware of the applicable rules and the distinction between the spousal privilege and the spousal disqualification, which are set forth at M.G.L. c. 233 sec. 20(a) and (b). 

Even Technical Errors Can Invalidate Foreclosure

Even technical errors in mortgage and foreclosure documents can invalidate the foreclosure and subsequent sale of a condominium unit, according to the Massachusetts Housing Court.  Following foreclosure, and purchase at the foreclosure sale by the foreclosing bank, the former owner asserted that erroneous references in the foreclosure documentation for the unit invalidated the foreclosure and left her with the superior right of possession.  The Housing Court, J. Muirhead, agreed and invalidated the foreclosure.  East West Bank v. Chung, Lawyers Weekly No. 17-001-13.

Pre-Teen Parenting Plans

In a recent custody case we litigated in the Massachusetts Probate and Family Court, a case in which the parties' minor child is a smart, articulate, athletic and very talented 11-year-old boy, an excellent resource published by the Association of Family and Conciliation Courts ("AFCC") called "Planning for Shared Parenting:  A guide for Parents Living Apart" became a vital guide for the parties in formulating an effective parenting plan that both parties agreed is in their pre-teen's best interests.  Formulating pre-teen parenting plans can be quite challenging.  This particular AFCC guide articulates a number of important issues that the parties to a custody case should consider.  Probate and Family Court judges often refer to the resource, so it is also something that should be considered in anticipating a possible judgment after a full-blown trial.  This advance knowledge certainly helps settle cases, and in turn, reduces the overall cost of litigation.     

As Beach Disappears, So Do Property Rights

In a case decided just last week, the Supreme Judicial Court (the "SJC") rejected the Plaintiffs-Appellants' contention that they held an interest in a "moveable" beach lot that shifted with the sands as the original lot disappeared into the Atlantic Ocean.

Arbitration Rules for Outer Space

The Permanent Court of Arbitration ("PCA"), an intergovernmental body based in The Hague and established by treaty over a century ago to provide international dispute resolution services, has recently issued the first set of rules specifically designed to govern arbitrations relating to outer space activities.  The PCA Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (the "Optional Space Rules"), formally adopted on December 6, 2011, took three years and over a dozen leading experts in air and space law to develop.  The Space Rules are based on the standard UNCITRAL Arbitration Rules, but contain modifications to meet the particular needs of disputes arising out of outer space activities.

Kraft Power: Veil Piercing And The Survival of Actions Statute Collide

Where a plaintiff has been harmed by a company, and the principal of that company exercises "pervasive control" over it, a court may "disregard" the corporate form allowing the plaintiff to recover directly from the principal. What if the corporate principal has died? Can a plaintiff still pursue claims under a so-called "veil piercing" theory against the principal's estate? In Kraft Power Corporation v. Merrill, the Massachusetts Supreme Judicial Court concluded that certain claims survive the death of the corporate principal, and others do not.  The Court also held for the first time that a plaintiff cannot recover multiple damages for unfair and deceptive business practices under M.G.L. c. 93A where the defendant has died.

Parental Alienation: Parents Behaving Badly or a Mental Disorder?

In what are usually highly contentious divorces or child custody disputes, the term "parental alienation" has been coined to describe what is a form of emotional abuse that occurs when one parent actively works to align their child with him/her to the exclusion of the other parent, without justification, resulting in the child's rejection of the estranged parent.  Merriam-Webster's online dictionary defines alienation as "a withdrawing or separation of a person or a person's affections from an object or position of former attachment; estrangement."  In cases involving parental alienation, there is destruction of a child's once positive relationship with both parents.  As one parent poisons the child against the other, the child's affinity shifts to only one parent while he/she alienates or rejects the other.

Massachusetts Court Declines to Enter Injunction That Might Impact Proceedings in Foreign Jurisdiction

Discretion, they say, is the better part of valor. So, too, judicial discretion is the better part of equity. Last fall, despite acknowledging "the equitable power and authority" to issue an injunction, the Worcester Superior nonetheless chose to keep its powder dry.

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