Posts tagged "visitation"

When does the statute of limitations clock begin running in multi-phase, multi-building real estate development projects?

Large, multi-unit, multi-building real estate developments can be seen all over the greater Boston area these days. As with any major project, problems can arise, and what looked like perfect, shiny new building may start to form a few cracks. Once cracks start to appear, when does the statute of limitations clock begin to run?

I have an out-of-state child support order, but my child and his other parent moved to Massachusetts. Does this change how long I am obligated to continue paying child support?

Different states have different rules regarding when a parent's child support obligation ends. In some states, a parent's child support obligation ends when a child turns 18 years old. In Massachusetts, a parent's child support obligation generally lasts at least until the child reaches age 18, but could continue until when the child turns 21 if the child is living with a parent and dependent upon that parent, or up until the child turns 23 if the child principally lives with a parent and is dependent upon that parent due to the child's enrollment in an educational program (excluding educational costs beyond an undergraduate degree). See M.G.L. ch. 208, §28

What "Counts" as Income for the Purposes of a Child Support Order?

In Massachusetts, the amount of weekly child support to be paid by a parent is calculated by relying on the Massachusetts Child Support Guidelines, which are published by the Executive Office of the Massachusetts Trial Court and updated every three years. Although it is a simple proposition to say that child support orders are largely based on the parents' respective incomes, it is important to understand what is included as "income" by the Probate and Family Court in determining a child support obligation.  The Guidelines themselves take the broadest possible approach to defining income, stating that "income is defined as gross income from whatever source, regardless of whether that income is recognized by the Internal Revenue Code or reported to the Internal Revenue Service or state Department of Revenue or other taxing authority."  The Guidelines go on to list 29 different types of income which are presumptively included in a parent's income for child support purposes, including, among other items, salaries, wages, overtime, tips, commissions, severance pay, royalties, interest and dividends, bonuses, certain government benefits, workers' compensation, distributions from trusts, pension and annuity income, capital gains, lottery or gambling winnings, prizes and awards, and rental income.

Are Employees Paid Solely by Way of Commissions Entitled to Separate Payments for Overtime Work or Work on Sundays Under the Massachusetts Overtime and Sunday Wage Statutes?

In Sullivan v. Sleepy's LLC, the Massachusetts Supreme Judicial Court (SJC) answered this question in the affirmative. In Sullivan, the SJC considered whether an employer satisfied its obligations to its employees under Massachusetts Overtime and Sunday wage laws, where its employees' wages were comprised entirely of commission (or draws against commission), if their total weekly income met or exceeded one and a half times their regular hourly rate or at least one and a half times the minimum wage for each hour they worked over forty. The Court concluded that those employees were entitled to a separate payment - in addition to their draws or commissions - of one and a half times their regular rate or at least one and a half times minimum wage for every hour they worked over forty. With regard to Sunday pay, the SJC affirmed that a plain reading of that statute requires a separate and distinct time and a half payment for hours worked on a Sunday pay even when an employee received commission payments in the first instance that equaled or exceeded what the employee would be entitled to per the Sunday pay statute.

Taking the Fifth: No Longer an Option When it Comes to Adultery in Massachusetts

Pursuant to 2018 Session Laws Chapter 155, Section 2 (An Act Relative to Reproductive Health), Massachusetts's outdated law criminalizing adultery was repealed. The Governor approved the law on July 27, 2018.

Is the knowledge of a closing attorney imputed to the mortgage company?

This issue arose in the recent Massachusetts Appellate case Salem Five Mortgage Company, LLC v. Lester. In that case, a mortgage company lent a borrower $300,000 for the purchase of a home on Nantucket. After the mortgage company approved the loan, but before the closing date, the borrower requested that his wife be added to the deed as a tenant by the entirety. However, the wife's name was not added to the mortgage, which remained solely in the name of the borrower. As a result, the mortgage company received a security interest only in the borrower's undivided interest in the property. The closing attorney, who represented both the mortgage company and the borrower, was aware of way in which the title was worded and told the seller of the property that the borrower and his wife would take title as tenants by the entirety. The mortgage eventually went into default, at which time the mortgage company discovered the mistake and sued for reformation of either the deed or the mortgage.

The New Judgments Convention

One of the main reasons that we at FITCH recommend that the vast majority of cross-border contracts contain international arbitration clauses is because of the New York Convention. More formally called the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, the New York Convention was ratified in 1959 and currently has 159 parties. It requires states to honor and enforce arbitral awards issued in any of the other member states, and means that by selecting international arbitration as the dispute resolution mechanism, parties can get their awards enforced virtually anywhere on the planet.

What Happens at a Pre-Trial Hearing?

If a divorce or 209C case is pending, the court, sooner or later, will schedule what is known as a pre-trial hearing. Sometimes this is also referred to as a pre-trial conference. This will happen either on the court's own initiative once a complaint has been on file long enough, or following a case management conference. At a case management conference, the parties and judge will address a timeline for the case - the appropriate timeline for a discovery deadline and a pre-trial hearing, among other matters. The parties can, by stipulation, avoid appearing at a pre-trial hearing by submitting a written agreement that specifies the specific dates for the case timeline.

When is Joint Legal Custody Inappropriate?

Massachusetts courts recognize two distinct types of custody of children. The first, physical custody, is what most litigants mean when they refer to having "joint custody" or "primary custody" of their child. Physical custody is a term that describes the amount of time the child spends in the care of each parent. Although physical custody is often the aspect of divorce or custody litigation that is most contentious, the second type of custody - legal custody - is also a fundamental element of parental authority. Legal custody refers to the parents' rights to make "major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development." M. G. L. c. 208, § 31. Legal custody can be either joint, in which the parties must confer with each other and reach shared decisions on these types of matters, or sole, in which one parent has the ability to make decisions about the child's health, education, or religion, even if the other parent disagrees. Joint legal custody, at a minimum, requires "two capable parents with some degree of respect for one another's abilities as parents, together with a willingness and ability to work together to reach results on major decisions in a manner similar to the way married couples make decisions." Rolde v. Rolde

Supreme Court Rules that Double Jeopardy Does Not Prevent State and Federal Prosecutions

The Double Jeopardy Clause of the Fifth Amendment provides that "No person shall...be subject for the same offence to be twice put in jeopardy of life or limb." That clause means that no person can be prosecuted twice for the same crime. Historically, the Double Jeopardy Clause had not been held to bar separate sovereign governments from trying an individual for the same crime, a doctrine known as the separate-sovereigns doctrine. Because the federal and state governments are separate sovereignties, the Double Jeopardy Clause had historically been held not to prohibit the Federal government from prosecuting an individual for an offense for which that individual had already been tried in state court.

To Be or Not to Be . . . a Debt Collector

In Obduskey v. McCarthy & Holthus L.L.P., the Supreme Court examined whether an entity engaged in the limited purpose of enforcing a security interest in a nonjudicial foreclosure proceeding fit the definition a "debt collector," thereby subjecting it to all of the provisions of the Fair Debt Collectors Practices Act ("FDCPA"). The Supreme Court unanimously ruled that the Respondent, McCarthy & Holthus LLP ("McCarthy"), hired by Wells Fargo to enforce its security interest by acting as its agent to foreclose on a defaulting, Colorado debtor's home, in that narrow instance, was not a "debt collector" within the meaning under the FDCPA, except with regard to the confines of §1692f(6). In order to reach its decision, the Court partitioned the FDCPA's definition of a "debt collector" into two parts: (1) a 'primary' debt collector defined as "any person . . . in any business the principal purpose of which is the collection of any debt, or who regularly collects or attempts to collect, directly or in-directly, debts[;]" and (2) for the purposes of §1692f(6) of the FDCPA, a 'limited-purpose' debt collector defined as also including "any person . . . in any business the principal purpose of which is the enforcement of security interests."

Uncontested Actions To Modify A Judgment Or Order By Agreement: Supplemental Probate And Family Court Rule 412

Since its amendment in 2013, Supplemental Probate and Family Court Rule 412 has provided litigants/parties with the ability to jointly request that the Court modify an existing judgment or order administratively and without the need for a formal hearing. While such administrative modifications can cover a myriad of provisions, including child support, actions pending under M.G.L. 209A (abuse prevention orders) are specifically excluded from the modification procedures set forth in Rule 412.

Serving Process on Chinese Companies in US Litigation

Hundreds of billions of dollars' worth of goods and services flow between the United States and China every year, and all of that commerce gives rise to disputes.  While we at FITCH usually recommend entering into International Arbitration agreements when contracting with parties in Chinasometimes that is not an option, such as when Chinese companies creates knock-off products and sell them online to U.S. consumers.  While U.S. courts will have jurisdiction over these disputes, just serving process on Chinese companies or individuals can be bedeviling. 

When The Price Isn't Right: Mortgagees Must Ascertain The Fair Market Value Of A Property Before Conducting A Foreclosure Auction

The foreclosure process varies across the United States, but the process traditionally occurs in one of two ways:  judicial or  non-judicial foreclosures.  Residential foreclosures in Massachusetts are non-judicial, which means that the foreclosure process happens outside of the courtroom.  Non-judicial foreclosures, also known as power of sale foreclosures, allow the mortgagee to sell the property if the mortgagor defaults on their loan provided the mortgagee complies with the statutory requirements under G.L.c. 244 §§ 11-17B.  In addition to the requirements under the statute, mortgagees owe mortgagors a duty of good faith and reasonable diligence to protect their interest in the property. 

"Merged" Versus "Surviving" Provisions of a Separation Agreement

The vast majority of divorce cases are resolved not by trial, but by the parties agreeing upon and submitting a Separation Agreement to the Probate and Family Court for approval.  One of the more confusing elements of a Separation Agreement for many clients is the fact that certain provisions of the agreement are deemed to "merge" with the Judgment of Divorce and other provisions are deemed to "survive."  Although these terms may be unfamiliar to non-attorneys, the distinction between the two is not particularly complex.  

Business Valuation in Divorce Cases

Business valuation arises in divorce cases where one or both spouses have an ownership interest in a closely held corporation - that is, a corporation which has a limited number of shareholders. This ownership interest is usually considered a marital asset, just like real property or a bank account, and is thus subject to equitable division in a divorce. Valuing a spouse's interest in this type of business can be a complex process due to the fact that there is no market on which a spouse could readily liquidate his or her shares. Accordingly, in many cases, the divorcing parties will retain a business valuator to determine the value of the spouse's ownership interest in the company.

Nonjudicial Foreclosures are not Subject to the FDCPA, says the Supreme Court

Until the Supreme Court's recent decision in Obduskey v. McCarthy & Holthus LLP, 139 S. Ct. 1029 (2019), if you were an entity engaged solely in the enforcement of security interests on loans, such as through nonjudicial foreclosure proceedings, the federal Fair Debt Collection Practices Act (the "FDCPA") would have been applied to you in some states but not others.  That is because the United States Courts of Appeals were divided on the issue, with the Ninth and Tenth Circuits finding that the Act did not apply, and the Third, Fourth, and Sixth Circuits finding that it did apply.  The Supreme Court resolved that Circuit split last month when it found that businesses engaged solely in security-interest enforcement do not qualify as "debt collectors" under the FDCPA.  

What Happens if Nothing is Happening in my Divorce Case?

Although it may be difficult to imagine for someone going through the difficult process of a divorce, on occasion divorce cases can linger for months, if not years, with little to no activity on the docket. The parties may have filed divorce papers, but never got around to following through with the divorce process. Or, the parties may have separated and then settled into new lives, never actually filing divorce papers or finalizing the divorce. The parties may have even reconciled. It is not unusual to have a client who has been separated for five, ten, sometimes fifteen years without having formalized his or her divorce.

Inadequate Petition For Grandparent Visitation Must Be Dismissed

In a decision handed down on May 3, 2018, the Massachusetts Appeals Court reversed a Probate and Family Court Judge's ruling and held that the court must dismiss a petition for grandparent visitation "when the petition does not sufficiently allege why visitation is necessary to protect the child from significant harm." See Martinez v. Martinez-Cintron, No. 17-P-1056 (Mass. App. Ct. May 3, 2018).

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