Monthly Archives: December 2013

How can I get rid of a DV Restraining Order?

In MA, the process of “vacating” (using the legal term) or modifying a 209A Abuse Prevention Order, i.e a Restraining Order or “RO”, depends on a number of factors: (a) which court issued the RO (b) whether you are the victim/complainant or the defendant (c) whether there was an arrest and criminal charges were filed by the State against the defendant (d) whether the RO has already been extended.

Any court of law or equity with competent jurisdiction can issue a Restraining Order in MA (District Court, Probate & Family Court and Superior Court).  Most typically, an injured party will file an Ex Parte Complaint for an Abuse Prevention Order under M.G.L. c. 209A in the District Court. The process in the District Court is deliberately simplified so as not to impede justice where a party has a legitimate grievance and is in danger if imminent harm. All that is required is for a party to complete the Complaint form and an affidavit stating the particulars of the allegations, then appear before the judge that same day (or night) and attest to the allegations contained in the Complaint and Affidavit, wherein they state under oath that they are in fear of harm from the alleged defendant.  The alleged defendant does not have to be present for the order to issue.  The police will be notified of the RO and the police will be charged with the obligation to serve the notice and RO upon the defendant.  ROs may cause or become part of a defendant’s record.

There is no bar to applying for an RO because another proceeding between the parties is pending in another court.  So that even if you are in the midst of a divorce or custody or support proceeding with the defendant, you can still file for an RO in the District Court, should a viable threat arise.  However, the District Court has limited jurisdiction in this regard: the District Court can issue the RO, which can include a full stay away order, and temporary custody if applicable, and a temporary child support order; BUT, it cannot litigate these issues to disposition.  The petitioner will have to transfer the order to an appropriate court (The Probate & Family Court) for a final judgment.  The sole purpose of the District Court RO is to place a legal shield between the complainant and the defendant to try to prevent immediate harm.

Another way to obtain an RO is to apply for it in your pleadings or by motion to the Probate & Family Court when a matter is commenced or pending before it. Lastly, a RO can be issued by the Trial Part of the Superior Court during a criminal case if either the Court or a witness who believes it is necessary applies.

An RO issued by the District Court can be “incorporated” into another proceeding involving the same parties in an action in another court, e.g. in a divorce or criminal prosecution.  This is done by motion. RO proceedings are distinguished from the universal prohibition of seeking relief in one court while a matter between the same parties is pending in another.  The law permits this exception to the prohibition on concurrent proceedings to afford expedited protection.  The same relief (restraining the defendant) sought in another court would take longer and involve more “process” than the District Court regulations require.

In order to un-do a Restraining Order issued by the District Court and not yet incorporated to another proceeding, the party wishing to vacate the order must apply to the issuing court by motion.  If you are the defendant, you should request a copy of the Complaint and Affidavit upon which the order was issued.  In order to have the RO vacated, you must convince the court that each and every of the allegations raised in the Affidavit are false.  The defendant has limited “discovery” tools available, unlike a conventional divorce or criminal proceeding because the 209A process in the District Court is an expedited proceeding, and lengthy discovery would defeat the purpose of its authority. A defendant has some subpoena power, but no deposition or demand for production of documents powers.  However, hearsay is admissible. You have the right to bring witnesses and to cross examine any witnesses produced by the Plaintiff/complainant giving sworn testimony.  Affidavits of friends or family, unaccompanied by live, in-court testimony, are not admissible.

The burden of proof for the defendant is very high, and unless you are attempting to vacate the Ex Parte order before it is extended, the chances of prevailing are very slim. (In the Ex Parte process described above, the court may issue the order outside of the presence or knowledge of the opposing party/defendant, but will require that the absent party be notified and served with the Order, and will be given a short date to appear in court and argue why the order should be dismissed before the court extends the order–typically for 6 months or one year.)  This first hearing is the most likely time to vacate the temporary RO–before it is extended.  If the Petitioner and the defendant agree that they no longer wish to have the RO in place, the court will most likely discontinue the order if there has been no arrest and if the defendant’s alleged conduct  does not rise to criminal.

The RO will have a definite date when it expires.  The petitioner may return to court on or before that expiration date and ask the court to renew the Order, if circumstances between the parties has not improved and there is still a threat of harm.  Both parties must have notice of and opportunity to be heard at the hearing.  At this point (the hearing to extend the order), it is virtually impossible to vacate the order because the facts have been reaffirmed by the petitioner at the time of the first hearing after issuance of the RO–when the defendant was given notice and opportunity to appear and rebut the allegations. If a petitioner does not seek renewal of the RO, it will expire without any further need of action by either party; however the record of the RO may remain against the defendant as a permanent part of a criminal record.

talk to the hand

 

Many times, the complainant/Plaintiff wishes to recant or dismiss the RO they sought and obtained from the District Court. This can be complicated where the District Attorney has begun a case due to the alleged criminal conduct of the defendant.  If, for example, the allegations include physical assault, or the brandishing of a weapon or abuse of a minor child, the case is going to be treated as a criminal matter and prosecution for the charges will ensue.  Once the state treats it like a criminal matter, it will be up to the prosecutor (the District Attorney and his Assistants) to determine whether they will dismiss the charges and discontinue prosecution as a criminal matter.  Sometimes, if the petitioner-now witness/complainant for the State refuses to testify and/or recants the allegations, and there is no other evidence but the testimony of the victim, the State will have no option but to dismiss the charges (since they will be unable to meet its burden of proof).  However, more and more the DA will not rely exclusively on the testimony of the victim and will use extrinsic evidence such as 911 call tapes, medical records, police reports, EMS records and other evidence of abuse or criminal conduct to prosecute the case.  So recantation is not a guarantee that the charges will be dismissed or that the RO will be lifted.

If the RO has been incorporated into a concurrent proceeding such as a divorce in the Probate & Family Court or criminal trial in the Superior Court, an application by motion has to be made in those courts for a vacatur of the RO.  That is a much more complicated application and counsel should be retained to pursue this.

Vacating a Restraining Order is a very difficult thing to do —for both the defendant and the accusing party.  I advise clients to consider the consequences of applying for a legal restraint BEFORE FILINGS.

NEVER FILE A FALSE REPORT OR FILE FOR AN ABUSE PREVENTION ORDER IF THE ALLEGATIONS ARE UNTRUE.

False allegations can become permanent records against the defendant, notwithstanding the falsity of the claim; and recanted allegation do not mitigate the harm done.  Restraining Orders can affect parental rights, custody and visitation, and even distribution of marital assets.  Further, for every victim who recants or refuses to cooperate in the prosecution of criminal charges, dozens of unreported abusers kill women victims of domestic violence every year. A false or recanted report of abuse discourages the police and legal system from taking abuse reporting seriously.  Abusing the process for retaliation or any other reason is a crime.  Recanters can be prosecuted for perjury,  defendant can me “marked” for life.  Police response to domestic violence situation is affected by the false reporting or recanting of allegations.

As always, I must advise that a person considering filing an abuse prevention order consult with counsel about the appropriate remedy.  Having said that, if you are under threat or fear of harm, you should not hesitate to seek a restraining order. If you are a defendant and feel a false charge has been filed against you, please do yourself a favor and consult with counsel before proceeding to attempt to remove or vacate the RO.

This information is based on Massachusetts law.  If you reside in another state or jurisdiction, you should consult with an attorney in your area for specific regulations affecting your rights and remedies.

http://www.ncdsv.org/images/False%20Allegations_WVCADV_1.15.08.pdf

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Is a Will still binding after 50 years?

A Will does not expire due to age or length of time since it was executed. There are very specific procedures required to void a will. If these formalities were not used, the Will is presumably valid, if valid at time of execution.  A Will, as we say in law, “walks with the testator”–that means it is valid, but not enforceable until the testator passes.

If you have a copy of the will, I suggest you take it to a local estate’s attorney. If you do not have a copy, you can do a will search in the probate court where the decedent lived or was living at the time of the writing. If neither of these are an option, you will have a harder time locating the will, if it still exists. The decedent may have destroyed it or written a new will once married. If you know the lawyer who may have drafted the Will, try to contact him/her.

If no will can be located, the court may distribute under “Intestacy” succession–which is a scheme set out by the state to distribute property of a person who died without a will.

Speak to an attorney who can assist you in locating the will and what options exist in the absence of a will.

I received a summon for a divorce, but nothing has happened since. What am I supposed to do?

The first thing you have to do is serve and file an Answer to the Complaint.  This should be done within 20 days of service of the summon and complaint.  If the time to answer has passed, you or an attorney can request an extension of time to answer.  failure to answer to the complaint could result in a default judgment of divorce against you.

One the issues have been joined (summon and complaint has been answered) you can make a motion for a temporary orders. You can also ask for temporary custody, child support (if you get the temporary custody order); and if circumstances permit, you may be able to get support for yourself–all pending the final dissolution of the marriage. A smart lawyer would have done that for you as soon as the divorce action was filed. Once an order is in place there will be no more game playing (or he does so at his own risk).

There are also required sworn financial disclosures that both parties must file. Lying on these financial disclosures is on pain and penalties of perjury.

There are many legal tools and procedures that an attorney would have already put into place to eliminate many of the issues you are concerned with.

If you do not have an attorney, your every effort should be to retain one—yesterday! Your legal costs can be paid by your husband, in some circumstance. Speak to a lawyer and s/he will know what to do for you and if they can get fees from the husband. Don’t waste another minute. Start calling lawyers today.

Does a legal separation freeze assets and debts at the time of filing?

The short answer is: NO

There are big difference between divorce and “separation”. MA does not have a provision for legal separation—only for Separate Support. Which means if you want to stay married but live apart, support orders can be entered which can include child custody and child support as well other provisions. However, the distribution of marital assets are not considered when a separate support application is filed with the Probate & Family court unless there is abandonment by the defendant spouse.

If you are concerned with treatment of property and assets should you and your spouse part ways, you are better off filing a Complaint for Divorce, which places an automatic stay on both parties restraining the sale, transfer, gifting or dissipation of assets or the further accrual of further marital debt to may have to be divided. 

Legal Separation is treated differently in different states.  MA does not have provisions for legal separation, while New York, on the other hand allows a legal separation to be converted into a divorce after a 12-month period.

You should consult with a local divorce attorney familiar with divorce and separation laws in your state about your concerns and rights.

What can my sister do? I think she has been defrauded of her shares in my mother’s estate.

Under your facts, your niece made promises of future financial and personal services to your sister in exchange for your sister presently gifting her share of your mother’s estate to the niece.  The promises were never kept and your sister is left with nothing.

Your sister’s problem is that all of these promises were verbal, and your niece can invoke legal defenses (such as the statutes of fraud) to fend off any legal claims. Further, if the life insurance policy named the niece as sole beneficiary, she alone is entitled to the death benefits.

These verbal promises, however, were quasi contractual agreements; that is, a court could find that a contract was implied by the conduct of the parties. This is an “equitable” remedy, which is to say —in the interest of justice–argument. There may also be elements of fraud and/or fraud in the inducement.

Your sister should speak to a CA lawyer familiar with contract and tort laws in resident state of your niece. It is possible to seek damages or restitution from your niece, but it will need a skilled lawyer to frame the argument.

I have custody of my 4 yr old daughter. Her mother just moved to Texas and wants her to visit there. How can I stop this?

There is usually a visitation order issued concurrent with the award of custody. One parent has physical (and possibly sole legal custody) and the other has the right to visit with the child.  The visitation order lays out when (and sometimes where) the child can visit with the non-custodial parent (“NCP”), as well as any restrictions to the visitations such as a third party’s presence or supervision of visitations.

caring father with children

Unless otherwise expressly stated in the order, the court did not envision visits across the continent. Without the custodial parent’s express consent, the either or both parents have to go to court to seek a modification of the visitation order to allow out of state visits. It’s the custodial parent’s burden to seek permission of the court and to argue why relocation should be permitted. Until such time, it is the NCP’s  right not to allow the out of state visits; but you should accommodate visitation locally to be in compliance with the order as intended. In the event the relocation is permitted, the NCP can travel to the child to exercise the visitation rights.

If you are served with a notice of a motion (to modify visitation), retain counsel to assist you prepare your rebuttal arguments.

If the NCP removes the child from the state without  permission or court order—that becomes a whole different ballgame.  Interstate removal of a child is a crime, even by a parent.  There are federal Parental Kidnapping Laws the prescribe the treatment of a parent who engages in this type of conduct.

Assuming the NCP is paying child support, there may be a modification of the support obligation to off-set the travel expenses–if the matter ever comes to court.  Otherwise, keep the status quo.

My husband has lied three consecutive times on his financial. What can I do about the under-reporting of income and assets?

Spouses that lie or under-report income are not uncommon in Divorce and Child Support proceedings. You have to bring whatever evidence you have of the under-reporting to the court’s attention. You should file a motion for further financial disclosure, which opens the door for a discussion of his finances in court. You can also use evidence of a life-style inconsistent with his reported income as evidence of under-reporting.

Hiring a private investigator or forensic accountant is another way to expose under-reporting.  Where the conduct is egregious enough, I have reported lying husbands (and wives) to the Internal Revenue and forced an audit, letting lose the forces of the federal government to unearth the hidden money.  Facing jail, heavy fines and penalties, most spouses cough up the money. 🙂

As part of divorce, I agreed to pay half of college costs for kids. However, last year I declared bankruptcy Am I at all protected?

Your legal remedy is go file a Complaint for Modification of the Divorce Agreement immediately. Only the court can determine if you are absolved of this legal/contractual responsibility due to the bankruptcy. 

However, you should know  that when filing a Chapter 7 or 13 bankruptcy petition, an automatic stay provided by Bankruptcy Code section 362(a) immediately goes into effect which prohibits all creditors’ attempts to pursue collection of a claim against the debtor or against property of the debtor’s bankruptcy estate unless excepted.

Section 362(b) of the Code provides for certain exceptions, including many family law matters and domestic support obligations. On the other hand, some family law obligations may also be considered priority claims under Section 507(a)(1) of the Bankruptcy Code, entitled to a priority in payment in bankruptcy, specifically, Bankruptcy Code Section 362(b)(2)(A)(ii) provides:

The automatic stay created by a bankruptcy filing bars the commencement or continuation of most legal proceedings, but it has no effect on a proceeding for the establishment or modification of an order for a Domestic Support Obligation such as child support. 

In other words, the Bankruptcy code allows a modification of the child support order; however this still leaves a question of whether the terms under the divorce agreement in also covered by this. Typically, if you filed and received a discharge in a Chapter 13 case, you may be able to discharge property settlement obligations. It is likely that an agreement to pay for college would be in the nature of support, rather than property settlement, so the likely answer to your question is “No.”   However, only a court of competent jurisdiction allow you to modify your obligation under the Divorce Agreement.

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Should gay unmarried couples who wish to name each other as executor in their wills, etc use terms such as “partner” or “life partner?”

 

Name your personal representative  or Executor in your Will; your relationship to the person is irrelevant. Be sure to properly identify him/her, including address and contact information. Prepare a living will (health proxy) to identify who can make end-of-life medical decisions in the event you are incapacitated. Have a power of attorney drawn up too. All of these documents can be prepared quickly by a good lawyer, and you will have peace of mind.

Estate Planning documents should be reviewed periodically and updates, as changes in circumstances require.

If you are contemplating having a will or living will prepared, please contact Matta Law office for a free consultation.

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What are the steps to gain full custody of my daughter?

“Custody”, as used in a domestic relations context, is made up of two parts: Legal and physical. Where a child is born to a married couple, both parents have a natural right to both physical and legal custody. These legal parental rights can only be altered by judicial intervention, when the parents legally separate or choose to dissolve the bonds of matrimony. (Of course, the State can intervene on its own in initiative to sever or alter these legal rights in cases of allegations of neglect or abuse.)

“Legal custody” of a child means having the right and the obligation to make decisions about a child’s upbringing. A parent with legal custody can make decisions about schooling, religion, medical care, etc.

“Physical custody” means that a parent has the right to have a child live with him or her.

These simple delineations are muddied by the legal options of “sole” legal or sole physical custody and joint legal/joint physical custody.  In many states, courts regularly award joint legal custody, which means that the decision making is shared by both parents. Some states will award joint physical custody to both parents to allow the child to spends significant amounts of time with both parents. Joint physical custody works best if parents live relatively near to each other, as it lessens the stress on children and allows them to maintain a somewhat stable routine. One parent can have either sole legal custody or sole physical custody of a child. Courts generally won’t hesitate to award sole physical custody to one parent if the other parent is deemed unfit — for example, because of alcohol or drug dependency, a new partner who is unfit, or charges of child abuse or neglect.

Now that we understand the framework of a custody question, we can discuss the process. Typically, where parents are seeking divorce, they must file a Complaint that lays out what relief they want the court to grant as part of the divorce judgment; they will include a request for custody and support of the child/ren. Many factors are considered by the court in making its determination–everything from any history of alcohol or drug dependency, to conduct and lifestyles of the parents, to their ability to communicate with each other and the child, to quality of life for the child.  The standard for assessing the most suitable custodian for the child is “the best interest of the child”.  Most typically, court will grant sole physical custody to one parent, and joint legal custody.

An unwed mother or father may also seek custody of a child.  This is done by filing a Complaint for Custody in a local Family Court.  It will involve first establishing paternity.

“Full custody” legally speaking– means sole legal and sole physical custody of the child.  This is harder to achieve.  The burden is on the moving party to prove why the other parent should be “shut out” of the child’s life.  The court is disinclined to do this. The removal of parental rights is a separate procedure, usually brought by the state in severe abuse and abandonment situations.

Lastly, even in circumstances where a parent is given sole legal and physical custody, the courts will encourage visitation by the child with the non-custodial parent. Every custody order will be accompanied by a visitation order and schedule.

Custody hearings can be very contentious.  Not only is the custody of the child at issue, but associated with the custody is the right to support.  The non-custodial parent pays the larger share of the the support obligation–usually in the form of weekly or monthly cash payment to the custodial parent until the child is 18, 21 or 23 years old, depending on their status as a college student and the history of the parents’ own education levels. Child support is a percentage of the combined incomes of the two parents: 17% for one child, 25% for two, and so on.

A person would be well advised NOT to seek a custody/support order without the assistance and benefit of legal counsel knowledgeable about the laws and procedure of the Probate & Family Court. If you feel you cannot afford a lawyer, there are various agencies and organizations that may be able to provide free or low cost legal representation. http://www.masslegalservices.org is a good place to start looking (for MA residents).

If you have a question about a prospective custody application, or if you have an existing order you want modified, please contact the Matta Law offices.