Category Archives: Civil Procedures

How Fast Can I Get A Divorce If I Can’t Locate My Spouse?

Respectfully, you seem to be a bit confused about the process involved in the dissolution of a marriage.  Lets start with: you cannot get a divorce if you cannot locate the other party. To begin the divorce process you must file a Complaint for Divorce with a court of competent jurisdiction (in Massachusetts, a Probate & Family court in the county where at least one of the parties resides).  The Complaint must be filed and SERVED on the other party.  Proof of service must be filed with the court. The court will then schedule a hearing (anywhere from 30 – 60 day later). But that is only the beginning…

 torn curtain

The fact that you “have no assets TOGETHER” is not controlling, since under MA law, ALL ASSETS of BOTH parties (whether held in joint title, owned before the marriage, acquired during the marriage or owned individually) are subject to distribution at the time of dissolution of the marriage.

Your first concern must be to locate the other party.  If he or she cannot be found and served, no court will allow the divorce to proceed–its a Constitutional requirement.

If the divorce is uncontested (which you cannot determine at this point because you have not conferred with the other party) the parties can file a joint petition for divorce, file an Agreement to be incorporated into the judgment of divorce, etc., that settle by stipulation all the issues the court will require be addressed in order to be satisfied that all the issues have been resolved by the parties voluntarily.  If the the other party objects (to either the divorce itself or any of the proposed terms) the matter will have to be litigated in court.  There are innumerable permutations that can occur if the other party objects.  Notwithstanding the fact that today parties have the option of filing under “irretrievable  breakdown of the marriage”  –essentially a “no fault” provision, marriage is a special type of contract and the State and the Court take the dissolution very seriously. A judgment of divorce can be entered anywhere from 60 days to several years after the action has been commenced.

Advertisements

What is a “Motion” and How Do You File One in the Family Court?

The question was put to me: What do I say on the motion form provided by the court when it asks “Motion For ______________”?

I’m going to assume you are a layperson (nonlawyer) trying to file something in court “pro se”–that is, on your own and without a lawyer.  A bit of civil procedure rules are required here: You can only file a “motion” when a case is already before the court; so if you do not have an active case (still being litigated and there has been no judgment entered), you must start an action by filing a Complaint. In the Probate & Family Courts of Massachusetts, this may be a Complaint for Modification [of an existing Order or Judgment], a Complaint for Contempt, A Complaint for Custody/Visitation, a Complaint to Establish Paternity, A Complaint of [Child] Support, a Complaint for Divorce, etc., to start a judicial review of your concerns. This is subject to all the rules of procedure controlling service and filing to commence an action. (See Mass. Rules of Civ Pro, Rule 4; http://www.mass.gov/courts/case-legal-res/rules-of-court/civil-procedure/mrcp4.html)  Then, once the action has been commenced, served and joined, either party (Plaintiff or Defendant) can proceed to make Motions.

scales of justice 2

A “Motion” is so called because the party is seeking to “move the Court” in the direction of granting an order. It is “persuasive writing”, and typically will include not only a request for the [temporary] relief sought, but will be accompanied by a sworn affidavit from a personal with actual knowledge of the facts, upon which the Court may rest its decision.  Typically, the moving party (also called the “movant”) will attach exhibits and further evidence in support to the moving papers.  A motion can be made for almost any imaginably  relevant request for interim relief (that’s why “motion practice” can be tricky and complicated). Any request made to the Court or regarding the proceedings is made by motion; so, a motion to continue the hearing (adjourn to another date), a motion for temporary orders, a motion to be relieved as counsel, a motion to grant attorney fees –virtually anything– OTHER THAN THE ULTIMATE QUESTION  reserved for judgment, can (and must) be requested of the Court by “motion”.

A further civil procedure note here: service of motions must be in keeping with the statutory time to serve upon opposing party before a hearing date–typically ten days–in order to allow the respondent to file and serve a written response, if they so choose.  All motions must be filed, calendared for hearing before the Court and served on all parties.  Proof of service of the moving papers must be filed with the court. All motions will be heard before the Court, with both sides present and given an opportunity to address the issues, for and against, before a decision will be rendered by the Court. A last note here: Motion practice is used in both civil and criminal proceedings, but of course, criminal case motions follow the rules of criminal procedure not covered in this discussion.

Decisions on motions are usually of a temporary or interim nature; they may be modified, vacated or over ruled in the Final Decision and Judgment of the Court. However, decisions and orders on motion may also be incorporated into the final judgment–and they often are!

To answer your question specifically, the “Motion For” on the motion form is followed by:   whatever you want from the court, e.g. Motion to Continue the hearing, or motion to waive appearance, a motion for temporary custody…you get the picture. In the scenario presented in your fact pattern, you would file a Complaint for Modification [of Custody/Visitation], then file a Motion for Temporary Orders [to change the visitation schedule], and “such other and further relief as the Court deems appropriate”.

While I know there is a  trend in the courts to encourage self representation, and the courts have tried to streamline and simplify procedures, Family Court matters are serious, and should not be undertaken by inexperienced pro se litigants, anymore than a layperson should try to build their own house.  Consult with attorneys (plural) and retain counsel to structure your position in a light most favorable to the court and to help you navigate through these complex procedures and rules of court.

Respectfully submitted,

Estela Matta, Esq.

 

 

Can I back out of divorce/separation agreement?

An agreement isn’t binding until a judge signs and enters it. If you find, after consideration and possibly advice of independent counsel, that the terms and conditions enclosed in the Agreement are not tolerable or include things you feel you can not live with, then do not passively allow it to happen to you.  Once the Agreement is entered into the court and made into an Order, you are bound by it. But, you can stop it at any time before that.  (There are ways to open the Agreement and modify certain terms and/or conditions, but they are difficult and costly.)

An Agreement memorializes the things the parties want and agreed to.  If you don’t agree, then its pointless.  Step back from an Agreement that does not represent what you agree to.  Don’t be bullied or coerced into signing.  If you signed it already, you have a last chance at the final hearing to express to the Court that you did not willing sign the Agreement.

torn curtain

Whether you live in an equitable distribution state or a community property state, property (personal and marital) can be put on the chopping block for distribution. The time and money and effort you put into the marriage  has a quantifiable value. I think every party should fight for their fair share.

You should retain a lawyer and fight for the things you are entitled to receive. The short answer to your question is: YES.

 

What affect, if any, to giving birth in another state for custodial purposes?

Where a child is born is very significant, in terms of what state has jurisdiction over the child, esp if an interstate custody dispute should arise. Pursuant to the Uniform Child Custody Enforcement laws, where the child is born and lives for the first six months of it’s life is the state that has jurisdiction to determine custody issues, unless the child is over 6 months of age and has established residency in another state.   Another factor that would affect what state has jurisdiction is whether the child is born in or out of wedlock, to a single mother or a married couple.

3 hands

Generally, if you are a single mother, and want State X to be the home state of the child, you should give birth there, and stay there with the child for at least six months. A brief visit to another state will not interfere unduly with the state’s right to jurisdiction; however if you there is no clear cut domicile and residency for the child within its first year, the court will look to broader issues such as where have the parents resided for the better part and what kind of ties to the community a child has with any of the states at issue. Further if you removed yourself with the child in utero, without consent of the father/husband you are looking at a more complicated legal situation.

If the father is an MA resident and is adamant about the child remaining in MA, you may have a problem if you have not clearly established the child as born and resident in the state of your choice, and the MA court may require you to return the child to MA. The less stable the child’s identity with another state, the more likely MA will find jurisdiction to award or determine any custody issues.

As always, I must advise anyone considering relocating to give birth to consult with an attorney.

 

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.  

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

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

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.

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.

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.

8 Lawyers agree with this answer
chosen Best Answer by asker