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My husband and I are getting divorced after a 8 year marriage. We have 3 young children and have decided that that I will stay in our home in Natick, and that the children will primarily stay with me.  We haven’t figured out when they will stay with their dad and already both sets of grandparents are voicing their interests in time with the kids too.  Are grandparents’ visitation something that gets written into the divorce agreement?

ATTORNEY ANSWER:

The rights of grandparents to spend time with the children after a divorce can be problematic and depends upon the facts of each case.  Generally, the rights of the grandparents to spend time with their grandchildren is ancillary to the parenting rights of the parents.  Under Massachusetts law, however, the grandparents of an unmarried child may be granted reasonable visitation rights by the Probate Court when the parents are living apart under a temporary order or judgment of separate support, or following the divorce of the parents.  The grandparents may also have rights if the children, who are born out of wedlock, do not live together but the paternity (of the paternal grandparents) has been established.  [Read more...]

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When my husband and I got married, we eloped  instead of a having a big expensive wedding.   My parents were all for it and gave me a sizable sum of money to put toward a down payment on our house in Framingham that we bought together in (about $35K).  I have just filed for divorce, and am wondering if my husband will be entitled to half of this asset?

ATTORNEY ANSWER:

Generally, an asset, such as the house will be included in the division of joint marital assets, if it was acquired during the marriage, even if your parents gave you the downpayment.  If this is a short term marriage with no children, then you might have a claim to a greater share of the asset but if it is a longer term marriage with kids and your husband has made a significant contribution to the principal, interest, taxes and insurance, then he might get half of the asset.

You also need to determine how much you want the asset.  If you have only had the house for a short period of time, it might be better to let your husband to buy out your share of the interest, or simply put it on the market for sale to a third party.  In the latter situation, you could agree to a split of the proceeds, which might be 50 – 50 or some other ratio that you negotiate.  If you have children, however, it might make more sense to hold onto the house until the youngest child graduates high school or college.  You would use the money that you received from child support or alimony to support the house.  At the point the children graduate, you could buy-out your husband’s interest, or put the house on the market and sell it.   [Read more...]

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We are in the process of getting a divorce.  I just found out that my soon to be ex-wife has hidden assets in her mother’s name and within her mother’s accounts. How can I subpoena those accounts? I know the bank account #s and they are extensive assets.  If I can subpoena the bank records, can I get a postponement of the divorce date?  I imagine that when these hidden assets are brought forward, it will change a lot of the financial details.

ATTORNEY ANSWER:

The first question is what stage you are exactly in the divorce.  If you are in the early state of the divorce case, then your wife is required to provide all information about her mother’s bank accounts within the first 45 days of getting served with the Complaint.  This is required under Rule 410 of the Massachusetts Rules of Domestic Relations Procedure so it would not be necessary to subpoena the records.  If you are beyond the 45 days, the information can be obtained by a Request for Production of Documents and Interrogatories, drafted by your attorney.  Generally, your wife has 30 to 45 days to respond to responses to the Request for Production of Documents and Interrogatories.  This is part of the usual discovery process that is part of any lawuit.  At this stage a subpoena may not be necessary.  But if you want to verify that what your wife has provided you is accurate, you may want to subpoena the records. [Read more...]

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My mother is filing for divorce after a 9 year marriage. My stepfather kicked her out of their Framingham house which she owned before they were married. My mom is disabled and he has been abusive and neglectful.  He wasn’t properly giving her medications and selling them instead, he threatened to take their 10 year old daughter and has made many other threats. All of this has been reported to the police. My mother is staying with me and my husband right now, as we fear he will hurt her. Will all of this be taken into consideration so she can she regain her home and custody of their child?

ATTORNEY ANSWER:

The first step that should be taken is for you to hire a forceful attorney and seek Temporary Orders to get your mother back into the Framingham house and to seek a 209A restraining order against your stepfather because of the emotional abuse, and/or physical  abuse, or threats of abuse.  This should be done immediately.  The 209A order can be obtained in the Middlesex Probate Court which has jurisdiction for Framingham.  The restraining order should seek relief that forces your step father to vacate the marital home and stay away from your mother and their 10 year old daughter.  [Read more...]

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I have been married for one month and am ready for a divorce. We got married because I am pregnant with his child. We rent an apartment in Natick.  He has some money in savings, I do not.  Am I entitled to anything?

ATTORNEY ANSWER:

You will be entitled to receive child support based upon the Massachusetts Child Support Guidelines.  The support is based upon your combined income with his.  You will become eligible to receive support when the baby is born, but not before.  Since the marital assets appear to be small because you rent and do not own your own home, your primary source of income from the divorce would be from child support, which would continue until the child is emancipated.  Emancipation occurs when the child reaches 18 years old and then moves out of the marital home and is working full time.  Alternatively, emancipaton occurs later after the child graduates from college, or reaches the age of 23, whichever happens first.

One important factor that could change this is if the father wants primary physical custody, or shared physical custody with you.  In that event, the amount, if any, that he pays in child support would be significantly less.  It is unlikely, however, that any probate court judge would award physical custody of the infant child to the father, unless the mother was “unfit” which is a difficult burden to overcome. [Read more...]

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I recently suffered an injury in a car accident on Route 9 in Framingham, MA.  The other driver was cited for speeding.  In general, under Massachusetts law, how do I know if I can sue for damages?

ATTORNEY ANSWER:

You have two claims.  The first is through your own automobile insurance policy, through PIP, which stands for Personal Injury Protection.  This will cover your out of pocket expense for medical bills, usually up to $2,000.00.  Then if you have health insurance, your medical bills in excess of $2,000.00 will be submitted to the health insurance carrier.  Any medical bill which is not covered by health insurance, gets covered again by PIP, up to another $6,000.00.  An exception to this is if you have Medical Payments coverage.  In that event, the medical bills will get submitted to Medical Payments coverage before getting submitted to the health insurance carrier, after the first $2,000.00 on PIP is exhausted.
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ATTORNEY ANSWER:

A divorce decree can always be modified with respect to child support and alimony.  There has to be a material change of circumstances, however, such as a loss of job, financial setbacks to a self-employed person in a difficult economy, or retirement, to justify a decrease in child support or alimony, for instance.  Conversely, the recipient may seek an increase in child support or alimony because of the needs of the children or a financial or health setback.

The process to change a divorce decree is done through a Complaint for Modification, filed by the party who wants to make the change.  The other party then files an Answer and sometimes a Counterclaim.  Financial documents are then exhanged within 45 days after service of the Complaint and the parties can then begin the process of a negotiated settlement or litigate the case in the Probate Court.

Although child support and alimony can be modified, the original property settlement usually “survives” the divorce judgment and is not incorporated into it.  In other words, the property settlement remains intact as a binding contract, unless the parties specify otherwise in the Separation Agreement.  One exception to this would be where there was fraud, where one party withheld information about an asset or gave misleading information about it.  That might provide grounds to reopen that issue.

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When I got married, I moved into my wife’s house. We are now getting divorced and I want to keep the house. Do I have any rights to it?

ATTORNEY ANSWER:

In general, if your wife bought the house before you got married and the deed and mortgage are in her name, then it is unlikely that you can keep the house, if this was a short term marriage.  If you contributed to the monthly upkeep of the house by contributing to the mortgage, interest, taxes and insurance, you might have a claim to a partial credit against the property settlement but the probate court might also conclude that you would have had to pay rent and some of the other aforementioned costs if you had not married your wife.  Therefore, getting a credit is unlikely.

In a longer term marriage, the question of who has rights to the house becomes less clear where both husband and wife made a greater contribution.  It is also important to consider whether children are involved.  The probate court is unlikely to approve the disposition of the house to either party if the children are still in school.  Children need continuity in their lives and a forced move might not be in their best interests.

If you made structural repairs or capital improvements to the house, over and above your monthly contribution to the mortgage, interest, taxes and insurance, you might be able to recoup some of that in negotiating for a larger piece of some other asset of the marital property.  This could include getting a greater share of retirement funds, stocks, cash or other asset.

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I slipped and fell on a puddle of water in the bathroom of local grocery store. I have two hairline fractures in my hip and one in my shoulder. There was no “caution/ wet floor” sign and there was one witness.  Do I have a personal injury case?

ATTORNEY ANSWER:

Yes.  You probably have a case but the facts have to be flushed-out more.  The first part of the analysis is to establish how you fell.  First, how did the water get there and for how long was it there before you fell?  If the water was there for a long period of time, then the store should have put its customers on notice that there was a hazardous condition that needed to be rectified.  It also helps to know how the water got there.  Was it from broken packaging, for instance, or from someone spilling something on the floor.  Was it done by an employee of the store, or by a customer?  This helps to determine how much notice the store had of the spill and did it have enough time to clean it up?  If the store had reasonable notice of the spill and failed to take care of it, and failed to warn is customers by having a “caution/ wet floor” sign, there is probably liability to the store.  Having a witness describe how long the water was there, together with describing the size, color and any other features of the water would also be important. [Read more...]