Monthly Archives: January 2014

Can my lawyer quit?

Unlike a criminal defense attorney, a lawyer in a civil action, such as divorce or personal injury, can “quit” with or without consent of the client, especially if the case has not been filed with a court yet.  After the case is file and pending before a court, the lawyer must file a notice to the court that they are withdrawing from the case and terminating representation.

father in court

There is no ethical violation or breach of the Rules of Professional Responsibilities for withdrawing from representation, if done properly, with notice to the client and the court.

Usually there is a provision or clause in the retainer agreement that covers termination of representation.  Read your retainer agreement carefully. The lawyer may also seek any “quantum meruit” fees he may be entitled to for work done on your case. This fee is based on the attorney’s “usual and customary charge for comparable services”, and should be accompanied by a detail statement of service rendered. You are entitled to recover your file from the former attorney.

Criminal defense attorneys must seek permission of the court to withdraw as counsel.  

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My Ex told me to stop paying her the child support. Is this legal?

Only a court of competent jurisdiction can vacate the child support order. If you fail to pay under the existing order you could be setting yourself up for a Contempt charge. If your ex no longer wishes to receive payments from you for the children, she will have to go to the Probate & Family court that issued the order and seek a new order terminating the child support obligations. She will have to give GOOD CAUSE why the court should absolve you totally of your support obligations. Unless she just won the PowerBall lottery and/or is independently wealthy, she will be hard pressed to explain why you should be exempted from the absolute duty to support your children. Another reason why the court might terminate your obligation is in the case of domestic violence.  In the past, where a woman or the children were in danger of retribution from paying spouse, she could claim good cause due to danger of physical harm if the paying spouse knew their whereabouts. Today, this is less likely because the court can arrange to have the payment made to the Department of Revenue for benefit of the children and the spouse need never have any contact with the wife or children.  This will depend on state laws.

Until such time that a court has terminated your child support obligation, I strongly advise you to continue making your payments. If she refuses to accept payments or fails to negotiate your checks, place the money in a trust or escrow account for the benefit of the children. If the contempt charges should later surface, you will have a very good defense and you will have the money to make the arrears payments.

father holding hands with child

The bottom line is: DO NOT STOP YOUR PAYMENTS UNTIL A COURT ORDER TERMINATES OR MODIFIES YOUR OBLIGATION. If you wife should actually take this matter before a judge, then you should retain counsel to assist you navigate this tricky situation.

Sperm donor child support liability

http://www.msnbc.com/news-nation/should-sperm-donor-pay-child-support

Can My Husband & I Just Agree How We’ll Divide Our Property?

Verbal agreements between the parties are totally unenforceable in law. You must memorialize an agreement in writing and file it with the appropriate court. Any Settlement Agreement between the parties is subject to approval of the court.  In addition to certain statutory requirements, the Agreement must be “fair”, not entered into under duress and each party should have advice of independent counsel.  Retaining a counselor to draft, file and argue the matter in a court is the best course of action.  This is really not a time for self help.

MA does not recognize legal separations, but does have other provisions to protect the separated spouses. If you are contemplating a separation, consider a separate support petition.  This is will allow a couple to establish a support order for spouse and custodial parent, if you have children.  It will NOT  address distribution of property and does NOT dissolve the marriage.

Couple-disagreeing

http://online-divorce-lawyer.com.au/tag/divorce-property-settlement/

http://www.avvo.com/attorneys/02110-ma-estela-matta-4257429.html

How is an inheritance treated in a divorce?

Generally, inheritances are not subject to equitable distribution because, by law, inheritances are not considered marital property. Instead, inheritances are treated as separate property belonging to the person who received the inheritance, and therefore may not be divided between the parties in a divorce.

However, state laws determine how an inheritance is treated in a divorce based upon how it was treated by the heir upon receipt of the asset(s).  If it’s “shared”, the rules vary greatly among the states. For instance, if the inheritance is deposited into a joint bank account and used for joint marital expenses (called “comingling of the inheritance”), the inheritance loses its immunity. Likewise, if the inheritance is used to make improvements to the primary residence, it may also lose its immunity.

Therefore, comingling is key — if this “separate property” is used in a way that benefits joint marital assets, the inheritance is no longer considered separate property, and may be subject to equal division upon divorce.

If this inheritance has never been commingled with marital assets, a divorcing spouse will have no right for inclusion in the distribution.

If the inheritance was acquired before the marriage, it is advisable to have a pre-nuptial agreement that specifies the property is not a joint or marital asset.  However, the same rules of comingling will still apply if the assets are joined with other marital funds or used as marital property.

This issue is fact-specific and subject to state law, so it is advisable to contact a  local divorce attorney to review your facts and circumstances to best advise you of your legal options.

Can both spouses file for temporary orders in Massachusetts? And what happens if both spouses request the same order?

Either party can file any motions it deems necessary and appropriate to advance its case; that includes motions for temporary orders. If both parties file timely motions for temporary orders, the court will hear both sides the same day. (Your lawyer  or the clerk of the court will tell you about how to notice the opposing party and other filing requirements.)

itsyourfault

Orders on motions in child custody/support cases are always decided upon the same basis: the best interest of the child and who makes the best argument why the child would be better off in their custody.  Motions for Temporary Orders should be filed right away (with or soon after the filing of the Complaint for Divorce).  Temporary Orders can remain in place throughout the pendency of the litigation and are often converted into permanent orders at disposition.  There is no strategic advance in filing first in this instance.

You should discuss these concerns with an knowledgeable family law attorney.  Contact my office for a confidential consultation.
www.emattalaw.com