Massachusetts Divorce Law Monitor

Divorce Lawyer's Choice, RIP Monday's Miscellany

Nancy Van Tine — Mon, 08 Mar 2010 09:00:00 -0500

Hi there,

Starting this week I am changing the name of the Monday's Miscellany category (don't worry, you can find all past entries here). Because I do a lot of in court litigation, Mondays tend to be a very difficult day for me to get a post together if I don't manage to get it done over the weekend, sooo I am changing the title to Divorce Lawyer's Choice, to get out of having to absolutely, positively have it done on Monday :)

This week I want to talk about women's issues. Not usually my bag, but I was so outraged by this article that I had to put it out there. Hi there, TaxGirl, question - If an institution has tax free status as a result of being a certain religion, do they get a "get out of jail card" for treating women as second class citizens?

Domestic violence in my mind stems, at least in part, from the belief that the victim is less than the abuser. The statistics are absolutely horrifying. Statistics don't tell the whole story . Domestic violence cuts across socioeconomic and gender lines.

This story terrified me because the young woman and her father tried to do all they could to prevent the tragedy, and still it happened. I understand how infuriating it must be to be forced to uproot your life to stay safe but safety has to be the first priority. That is why so many domestic violence shelters do not advertise where they are.

I was also dismayed to read the story about New York's Governor Patterson.

Best,

Nancy

Making The Case For A Prenuptial Agreement

Nancy Van Tine — Wed, 03 Mar 2010 09:00:00 -0500

Hi there,

Every now and again I have the luxury of getting a colleague to guest post for me. Today it is my partner, Robin Lynch Nardone. With spring in the air (well maybe) and with socioeconomic trends making prenuptial agreements more necessary, her article is very timely.

Enjoy!

Guest post by Robin Lynch Nardone, Partner at Burns & Levinson LLP.
Ms. Nardone specializes in family law litigation and mediation. In her litigation practice she handles all aspects of divorce, custody disputes, paternity, post-divorce modification and enforcement of alimony, child support, and other judgments. She has extensive experience in the negotiation and drafting of prenuptial agreements, cohabitation agreements, and divorce agreements. In addition to litigation, Ms. Nardone is a trained family law mediator. As a neutral mediator, she helps couples amicably resolve family law issues through informed negotiation.

As I look out over the six inches of new snow blanketing my lawn, I dream of summer sunshine, the smell of cut grass, back yard barbeques and summer weddings! If you are in the midst of planning your wedding, as you review your checklist of "to-do's," don't forget that while this winter's snow will melt and the sun will shine on your wedding day, endless fair weather isn't a guarantee. Marriage is entered into at a time when you have a very positive outlook on the future. But what will you do if, over time, storm clouds gather and overshadow your best intentions. Last, but not least, on your “to-do” checklist before marriage should be considering a prenuptial agreement, just in case there are too many rainy days in the future of your marriage.

Despite the sometimes negative connotation, prenuptial agreements can help avoid conflicts in the future. Besides the obvious ability to plan for division of assets in the unfortunate event of termination of the marriage, a prenuptial agreement also forces couples to disclose fully their financial situations to one another and to discuss those finances in advance of the marriage. Finances remain one of the top issues over which married couples argue - and those arguments can and do lead to divorce. There are too many people who enter into marriage with only a vague understanding of their spouse-to-be’s financial condition and feelings about finances, only to learn of the reality later. If you learned before marriage that your spouse-to-be has no intention of opening a joint bank account with you because his money is his money, would that give you pause? Talking these types of issues out before marriage is important.

A prenuptial agreement can give you control over how assets - and liabilities - are divided in event of termination of the marriage, as well as how certain assets or income will be handled during the marriage. Within a prenuptial agreement, you can make provisions for alimony, health insurance, and life insurance. While no one entering into a marriage wants to consider the possibility of that marriage ending, the reality is that near 50% of marriages end in divorce. You do not need to have substantial wealth to consider a prenuptial agreement. It is not just the rich who spend time fighting it out in court. Without a prenuptial agreement, absent agreement at the time of divorce, a Probate and Family Court Judge will decide how the assets are divided and how income is shared in the event of divorce.

While prenuptial agreements are not right for every couple, thinking about the finances of your marriage is something all couples should do. Sharing knowledge about financial expectations before marriage may even help couples avoid ending up in divorce court. So, while you are deciding between roses or lilies, you should also consider whether a prenuptial agreement is right for you.

Sex Addiction, Internet Privacy and Other Miscellany

Nancy Van Tine — Mon, 01 Mar 2010 09:00:00 -0500

Hi there,

I hope you all had a good weekend despite the weather. I managed to avoid watching Tiger Woods' mea culpa last week, but then I came across this article which basically condones the behavior as "natural". While I can certainly see the argument that promiscuity may be wired in people, (I have had animals all my life and I know its wired in in them) I really think that as adult human beings we all make choices and promiscuity is a particularly self destructive choice to be making.

The Internet is a fertile field for divorce lawyers. As one, I am very mindful of the pitfalls of social networking. It also is a fertile field for thieves as this new site points out. Privacy in this wired-in age can be illusory. I had no idea how much information the mere existence of technology can provide someone who is able to access it.

And finally, a colleague of mine alerted me about this website, Simple Marriage. It is an interesting compilation of self-help information. If you are considering divorce you may want to review the possibilities for avoiding it. Even if in the end divorce is inevitable, there is comfort in knowing you did try your best to avoid it.

Best,

Nancy

Sociopaths Among Us

Nancy Van Tine — Thu, 25 Feb 2010 14:42:22 -0500

Hi there,

One of my clients sent me an excerpt from a book, "The Sociopath Next Door" by Martha Stout which describes almost perfectly, the client's ex husband's character and behavior.

DSMIV (the Diagnostoic and Statistical Manual of Mental Disorders IV) defines sociopathy as:

Diagnostic criteria for 301.7 Antisocial Personality Disorder
A. There is a pervasive pattern of disregard for and violation of the rights of others occurring since age 15 years, as indicated by three (or more) of the following:

(1) failure to conform to social norms with respect to lawful behaviors
as indicated by repeatedly performing acts that are grounds for arrest.

(2) deceitful, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure

(3) impulsivity or failure to plan ahead

(4) irritability and aggressiveness, as indicated by repeated physical fights or assaults

(5) reckless disregard for safety of self or others

(6) consistent irresponsibility, as indicated by repeated failure to sustain consistent work behavior or honor financial obligations

(7) lack of remorse, as indicated by being indifferent to or rationalizing having hurt,
mistreated, or stolen from another

B. The individual is at least age 18 years.

C. There is evidence of Conduct Disorder with onsets before age 15 years.

D. The occurrence of antisocial behavior is not exclusively during the course of
Schizophrenia or a Manic Episode.

Apparently this diagnosis may change when the new manual comes out, but the gist remains the same.

I was stunned to read in Stout's book that the disorder is now thought to exist in around 4% of the population. This is a huge incidence. It means we all know someone who is a sociopath. When I actively thought about it I realized that I have come across many of them in my career . Their cases often end up being litigated, no doubt as a result of their psychopathy. Sometimes a trial is the only way to get the reality of what has gone on before the court as sociopaths tend to lie consistently. Unfortunately the perils of litigation are necessary when faced with an opponent with no conscience.

I have been listening to the reports of Amy Bishop and wondered if she isn't a sociopath too.

Best,

Nancy

Telling the kids about divorce, and other stuff

Nancy Van Tine — Mon, 22 Feb 2010 13:30:00 -0500

Hi there!

In almost every divorce case involving children the parents worry about how to tell the kids. Here is a very good road map on the do's and dont's of informing your children about your pending divorce.

Not so critical, but also important, is just how to divide your personal property with your soon-to-be-ex. Here is a good outline of the various methods you might chose to use if you cant agree.

And still in the news, I have to admit I was nastily pleased to read the Texas Attorney General filed too late to stop a gay couple who married in Massachusetts from getting divorced in Texas. What happened to full faith and credit?

Best,

Nancy

Topic 4: Alimony

Nancy Van Tine — Fri, 19 Feb 2010 09:59:21 -0500

Hi there,

Fourth in our topics to discuss is alimony. In addition to everything else you need to think of, another important consideration when getting divorced is alimony.

You first need to decide if your case is an alimony case. You can do that by answering these questions:

Does one of you earn substantially more than the other?
Are there economic needs of one party that are not being met by her income?

Alimony is determined based on the needs of one party for support and the ability of the other to pay.

The reverse of child support; alimony reduces the payor's taxable income and is taxable to the recipient.

If you have children, the child support guidelines will apply to the first $250,000 of income, however, you can agree to allocate the support payment between alimony and child support to get the maximum tax benefit for the family unit.

Alimony currently is a very contentious area of divorce law. There is a task force on revisions to the alimony law pending and there has been a great deal of public discussion surrounding that.

When deciding, you should also consider:

Timing of payments
When and why there can be increases
If there is bonus income involved how alimony can or should be paid from the bonus, it is usual and I think, sensible, to set a percentage for alimony to be paid from the bonus on an 'if and when received' basis.
Reductions and termination.

One of the real problems with alimony is that the Courts still lack the power to set an end date although there is legislation pending to give them that authority.

Best,

Nancy

We're Turning 1!

Nancy Van Tine — Wed, 10 Feb 2010 09:00:00 -0500

Hi there,

It is hard for me to believe today is the first anniversary of this blog. In some ways, it feels like I have always been doing it.

I have learned so much, not only about the technology but about the web, social networking and the INCREDIBLE amount of information you can access online if you know where (and how!) to look.

This year has been terrific and fun, and I could never have done it with out the help of of my terrific partners in crime, Anna DeLeo and Scott Katz. Thank you guys!

There are a lot of posts that I think have stood the test of time quite well and some that have just been for fun.

Here are my personal favorites:

Hope you've enjoyed reading the blog as much as I've enjoyed writing it! Here's to another year!

Best,

Nancy

War, violence and plastic surgery

Nancy Van Tine — Mon, 08 Feb 2010 16:51:47 -0500

Hi there,

I have so much respect for the men and women who serve in the military, especially now, when we are involved in 2 wars. We all think of the obvious risks they run going to war. Those who are parents run another risk that hasn't gotten much publicity.

On another note, violence by children is a family law problem all practitioners see occasionally. It is a very sad situation and also as this article shows, a true Catch 22.

Since this is Monday Miscellany, after all, I have been saving this article. I have actually had cases where there has been some concern about the cost of plastic surgery, I have not ever taken the issue to a judge though.

And in the totally random category, who knew - I certainly didn't - that Scott Brown was a divorce lawyer.

Best,
Nancy

Sex, lies and videotape

Nancy Van Tine — Thu, 04 Feb 2010 11:20:41 -0500

Hi there,

I spent last weekend reading Andrew Young's book about John Edwards, The Politician. It was riveting, not only because of the scandal, but perhaps least because of the scandal. I am actually scandal weary right now - think Tiger Woods.

The Politician is a morality tale. Mr. Young is himself a child of divorce. In his teens, his beloved and morally revered father committed very public adultery. You can trace in the book how that loss made him vulnerable to John Edwards' narcissism.

Elizabeth Edwards does not come off well either. Her popularity plummeted as a result of the story of her vengefulness and sense of entitlement. Elizabeth undoubtedly deserves a popularity hit for the entitlement issues, but I totally get the vengefulness. She had been lied to by her husband who told her (unbeknownst to Mr. Young, at least in the beginning ) that the woman in question was Mr. Young's mistress. Thus, what she saw as the unraveling of the campaign and the besmirchment of John Edwards reputation, was due to Mr. Young.

As a divorce lawyer who does a lot of litigation, (I talk a lot about settlement in this blog because I believe that usually settlement is the best idea, but hard fought litigation and trials are what I primarily do) I see a lot of cases where adultery is a real issue. It is very hard for a non-lawyer to understand that the law cares little or nothing as to whether their spouse cheated on them. The real and irresolvable issue in a divorce where adultery is known, is often that one spouse has been lied to and so everything must be tested because trust is impossible. In order to reach settlement in cases there is a real necessity for a certain level of trust. It may only be that the numbers have been tested through discovery, but some comfort level has to exist before both parties can agree to sign a contract. Of course there are also irresolvable issues - custody, removal of children from the commonwealth and issues of valuation that cannot be compromised, which also result in trials.

Because of what I do I like to think of myself as un-shockable, but this book did shock me. Not by the truly tacky behavior, but by how close Edwards came to the presidency. I have often thought that running for the presidency requires a certain degree of insanity, but Edwards' narcissism is astounding.

Best,

Nancy

Appearances Count

Nancy Van Tine — Mon, 01 Feb 2010 13:07:05 -0500

Hi there,

Since I am working on a list of a series of topics to consider when getting divorced, a couple of related posts have popped up that I wanted to share.

The first, from the New Hampshire Divorce blog has to do with how to present yourself in court. Court is a new experience for most folks and I have found that it helps make it a little less overwhelming if I tell them what to wear, as well as what to expect.

I had a post prior to the holidays which had some good links regarding scheduling assistance for co-parents, and I have just found another one which may also be helpful.

Take care!

Best,

Nancy

Child Support: The Additional Expenses You Should Be Aware Of

Nancy Van Tine — Thu, 28 Jan 2010 09:19:50 -0500

Hi there,

Third in our outline of topics to consider when getting divorced are additional, child related expenses. The child support monies are intended to cover food, shelter and clothing; but as anyone who has raised a child knows, that is only the beginning. Some of these expenses should be shared with the other parent.

Uninsured medical expenses:
According to the child support guidelines, the primary caretaker of the kids pays the first $250 per year for all the kids in combined routine uninsured medical and dental expenses. After that, the parents divide the costs equally. This sounds simple, but it can result in accounting and repayment problems. Be sure to keep all records of bills paid and be sure to submit the bills for timely payment both to the other parent and the insurance company if you need to. Since insurance companies differ wildly in their requirements, as do medical and dental providers, it is best to consider your situation from both aspects and have some language in your agreement that takes care of all forseen possibilities.

Extracurricular activities, and other costs:
These are no longer considered to be part of child support, so it is necessary to have an agreement on what extracurricular activities the kids will have. Other costs can include sports gear, art supplies, etc. that are necessary for the planned activities; it can also cover such things as summers abroad and church trips, the list goes on and on. A good rule of thumb is to try and keep the kids lives as stable as possible, so if you can, at least keep them in their current activities. You should have both a mechanism for agreement on the activities, and also a mechanism for division of payment.

Summer camp:
Again, this is no longer part of child support; and since it can be, and often is, necessary for the custodial parent to work. The work requirement means summer camp expenses can be considered child care in calculating the guidelines or it may not. If the camp costs are used as daycare costs in the guidelines, obviously the costs won't be divided. You should consider a cap on the cost, as summer camps can run up to many, many thousands of dollars. There should be a mechanism to agree on the camp including when to agree as well as a default resolution if parents cannot agree, and, finally, the cost of camp has to be allocated.

Private school:
This is generally not ordered by the Court, although in certain circumstances it can be. There needs to be a method set up to agree on first, the concept of private school and then, the school itself, and then there needs to be a method to divide the cost. The cost often ends up being considered as part of the payor's child support.

College/Post secondary education:
The Court does not have the authority to make any rulings about college until the kids are on the eve of attendance. This doesn't mean you shouldn't try to resolve this earlier in your separation agreement. If there is extra money having some of it go to 529 accounts can be a good idea. Given the incredible cost of a private college education ($50,000 per year per child and climbing) there seems to be a move afoot in the courts to cap the amount either party is required to contribute at the cost of a State school, such as UMass Amherst. Again you need a mechanism to chose the college, remembering to keep each other informed, and a mechanism to divide the costs.

Stay tuned for the next installment and drop me a note to let me know if these are helpful!

Best,
Nancy

Burqa Barbie and other odd thoughts

Nancy Van Tine — Mon, 25 Jan 2010 17:15:00 -0500

Hi there,

It seems as if France is going to ban the burqa in hospitals and schools but not on the street.

I have always been horrified by the concept of the burqa - I consider the fact that I was born female in 20th century America to be a stroke of overwhelming good fortune, but apparently burqas are bad for your health as well. While we're on the subject, the concept of Burqa Barbie also blows my mind. It seems so wrong on so many levels, when you think of those poor little girls whose future will be life in the "brown bag," so should they really get a doll that celebrates their condition? No good answer.

Finally, if you did hit the jackpot and were born female in the United States, the times they are a changin' - men now are the ones marrying up. Of course that means that women now have to pay alimony as well.

Best,

Nancy

Child Support in Massachusetts: Take 2

Nancy Van Tine — Fri, 22 Jan 2010 16:11:13 -0500

Hi there;

In any support situation, it seems the support is always too much for the person paying, and never enough for the person receiving it. With child support in Massachusetts, the payments are formulaic. The Child Support Guidelines were revised a year ago, and here is an update on the revisions.

In most cases if there are children who fall under the guidelines (generally under 18 if not in school and up to age 23 if in college), the parent with whom the kids are living should be receiving at least some support from the other parent even before the parties hit the court system. The guidelines make it easy to determine the amount, but even with a formula there can be disagreements and the recipient may need to ask the court to intervene.

Commonly, child support is paid on the same calendar as the one used to calculate and receive your pay check. The calculation is weekly, so if you are going to be paying monthly remember there are 4.3 weeks in a month; consequently, a $100 per week order results in a $430 per month payment.

If possible, it is best to have the support paid either via payroll deduction, or direct deposit. That way no one needs to remember to do it, or to nag when it doesn't get done. NEVER, EVER have the payments delivered via the kids (and do NOT, as one person in my experience did, write "Blood money for the Bitch" on the memo line on the check)!

The person who pays child support also pays the taxes on it. This usually means that in the final agreement, there can be some consideration of this in the allocation of the dependency exemptions.

Best,

Nancy

Monday's Miscellany

Nancy Van Tine — Mon, 18 Jan 2010 12:00:00 -0500

Hi there;

Happy Martin Luther King Day. I have to confess that I don't usually stop to consider MLK day, it just provides a welcome 3 day weekend in the middle of the winter.

But this year, with the horrific situation in Haiti going on, it made me think about the heroism of ordinary people. The folks in Haiti, without water or food, in 90 degree heat, digging through the rubble with their bare hands for survivors. The folks from all over the world in rescue units who appear to have dropped everything and gone to help out.

While Martin Luther King was obviously heroic, he certainly wasn't an ordinary person. Miep Gies, the woman who hid Anne Frank and her family was ordinary, but she showed extraordinary courage. She died this week at the age of 100.

Dr. King and Miep Gies were inspirations to many people in their lifetimes. The actions of ordinary people in Haiti are inspiring, and a fitting tribute to the memories of these two unique heroes.

May things get better in Haiti soon.

Best,

Nancy

First and foremost, if you have them: The Kids

Nancy Van Tine — Thu, 14 Jan 2010 16:40:20 -0500

Hi there,

Here is the first topic in the series: Top 10 Topics to Consider When Getting Divorced.

If you have kids who aren't grown up, then this can be the most difficult area to navigate. You will want to consider all of the topics in A and B below, and you may need to consider the topics in C, D and E as well.

A. Legal custody, joint vs. sole, what legal custody means; who makes major decisions such as health, religion, education, moral development; and/or emergency decisions?

Most folks end up with joint legal custody, which actually is presumed to be the default format in Massachusetts. Joint legal custody means that the parents need to communicate, and hopefully agree on the major decisions listed above. This can be very hard in a high conflict situation, and impossible in a situation involving violence, mental health or substance abuse issues. In fact, the state is asking people who are getting divorced because they can't communicate, to continue to communicate about their children.

I have the utmost respect for those who manage sometimes after the divorce is done, to step back, take themselves out of the equation and do what is best for the kids. I have some prior posts about holiday scheduling that may be useful. Sometimes, parents can't do it themselves and a Parent Coordinator is necessary.

B. Your parenting plan: where do the kids live?; when does the other parent see them (vacations holidays, etc)?; who does the driving for pick-ups and drop-offs?

This is often the most difficult piece to determine, as frequently both parents want to be the "primary parent". Parenting plans can range from true shared, equal custody, to a more traditional - every other weekend and a couple of evenings during the week format. If you can't agree the Court will decide, with the standard being "the best interest of the children," which usually translates to what the reality has been in the past - who the true primary caretaker has been. In custody litigation the Court usually appoints a Guardian ad Litem to help determine what the parenting situation is, has been and should be.

C. Removal or moving within the state.

Generally you have the right to move anywhere within the state; however, moving from Berkshire County to Nantucket can place real obstacles in parenting, and sometimes Courts have prevented it. Moving outside the state, even from Attleboro to Woonsocket requires either an agreement of both parents or the approval of the court. This can be a whole new legal action and can consume as much emotional energy, as well as legal fees, as a custody case.

D. Temporary incompetence of one parent.

What happens after the divorce when one parent is unable to care for the kids, generally due to mental illness, substance issues or incarceration? Most often there will be a temporary transfer of physical custody to the other parent, this can happen by the agreement of both parents, or through court intervention. Problems arise when the impaired or ill parent is better (or not) and wants the kids back. This can trigger a whole new custody action. These circumstances also often involve the state's Department of Children and Families.

E. Relationship with other relatives.

Grandparents have rights too! And so do parents against Grandparents. Usually grandparents see their grandchildren when their child has them; however, in some instances grandparents can ask for their own time with their grandchildren. Conversely, grandparents can be excluded from seeing the kids as well.

I realized as I wrote this that this is just the tip of the iceberg here, I could go on and on... I hope it helped.

Best,

Nancy

A Modern Miracle: David and Sean Goldman

Nancy Van Tine — Fri, 08 Jan 2010 06:21:33 -0500

Hi there,

I have been reading the David Goldman saga for some months now. As a story, it highlights the problems of international custody cases when one parent takes the children to a foreign country and will not return them. These cases are very difficult, even if the country in question has signed the Hague convention. You need an American divorce attorney who understands the convention, contacts at the US State Department; an attorney in the foreign country who does family law and understands the Hague convention and has contacts in the foreign State Department. It is hellishly expensive. Furthermore, if the country in question hasn't signed the Hague convention (like most of the Muslim countries) then the result can be tragic.

If you don't know the Goldman story, in 2004 David's then wife took their 4 year old American born son to Brazil for what she told David was a 2 week vacation. Once there she ended the marriage, remarried a Brazilian lawyer and then died in childbirth in 2008.

David Goldman has been fighting to be reunited with his son for 5 years and the reunion happened on Christmas Eve.

It should have occurred much, much earlier. There were no allegations of violence or any untoward behavior on David's part. Jurisdiction for the divorce and thus for the custody, parenting battle should have been in the New Jersey Courts.

There is an international treaty, The Hague Convention which governs the rights of parents and children in international custody cases in those countries which are signatories to the treaty.

Brazil became a signatory in 2003. But there can be a real disconnect between what should happen legally and what does happen, and that disconnect is always greater in international cases. Here, Brazil has not been compliant with the terms of the Hague convention. According to the State Department before Sean's return to his father there were 66 American born children in Brazil in defiance of the terms of the treaty.

The political pressure which David Goldman's supporters were able to bring to bear on the Brazilian system is a tribute to the fundamental decency of a lot of people AND the fact that Brazil was vulnerable to the non passage of a treaty which provided billions to them in economic benefits.

I can only wonder what will happen to those 65 other children, now that the treaty is passed?

Lets hope the Brazilian government means what it has said.

Best,

Nancy

5 Simple Tax Tips About Divorce

Nancy Van Tine — Wed, 06 Jan 2010 14:47:41 -0500

Hi There,

Happy New Year! Tax season for 2009 has now begun. Here are 5 simple tax tips about divorce:

1. Child support is not taxable to the recipient, or to put it more bluntly, she who pays her ex child support also pays the taxes on it.

2. Alimony is taxable to the recipient, so he who pays child support as alimony or as unallocated support, is saving the taxes; or alternatively, transferring responsibility for them to his ex.

3. Unless you are in a single-sex marriage, all property transfers between you and your ex as part of your divorce are tax free. I wrote about this previously here.

4. If you and your soon-to-be-ex are dividing pensions on divorce (again only if you were not in a single-sex marriage), then there is a way to transfer pensions without any tax consequences. It is called a qualified domestic relations order or QDRO, and there is a whole niche of the bar who do nothing else.

5. Finally, the IRS has five tips for recently married or divorced taxpayers.

Best,

Nancy

A Legal Twist to a Holiday Favorite!

Nancy Van Tine — Thu, 31 Dec 2009 13:17:12 -0500

Hi there,

I can't believe this year will be over in just a matter of hours. Where has the time gone?

As we say goodbye to 2009, here's an old holiday favorite with a little legal twist (courtesy of the TaxProf Blog).

I wish you a very happy and healthy New Year! See you all in 2010!

Best,

Nancy

All I want for Christmas is Safety and Peace

Nancy Van Tine — Mon, 21 Dec 2009 09:00:00 -0500

Hi there,

Somehow a post on domestic violence protection doesn't seem in the true spirit of Christmas, but the sorry truth is that this is a problem which exacerbates during the holidays with their overlay of extra family stress and alcohol fueled parties.

Massachusetts has several laws designed to deal with these circumstances. In addition to Massachusetts General Laws Chapter 209A, which was discussed in my last post, there are probate statutes, Massachusetts General Laws Chapter 208 Sections 34B,C and D. These are useful for psychological battering and generally unhealthy, emotional circumstances as well. It is important to note that the statutes and the Court do recognize the burden parental violence puts on children and attempts to protect them from it.

Chapter 209A defines the standard as "attempting to cause or causing physical harm, placing another in fear of imminent, serious, physical harm." The parties need to be family or household members and the order can remove a party from the home without prior notice, although s/he will later have his/her day in court. This is a very serious statute, which is so helpful because it includes provisions for protection on nights and weekends by ensuring there is always a Judge available. All you need to do is call 911.

There is also Massachusetts General Laws Chapter 208 section 18, a provision which allows judges to deal with certain behaviors which, while harassing and annoying, don't meet the 209A standard for violence or fear of violence. This statute can also be used for violence, in which case the procedural requirements of chapter 209A should be observed.

I hope you and yours are enjoying a holiday season free from violence. If you are not, the best gift you can give your children and yourself is a restraining order and a safe haven.

Stay safe!

Best,

Nancy