Massachusetts’ Rules on Spanking: The Parental Privilege Defense

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Massachusetts’ Rules on Spanking: The Parental Privilege Defense
By Amanda Castro, Esq.

A recent Supreme Judicial Court decision allows parents to use reasonable force in disciplining their children without being charged criminally. The Court ruled in Commonwealth v. Dorvil that the physical force used in disciplining a child must be “reasonably related to the purpose of safeguarding or promoting the welfare” of that child.

This decision arose from a case in which a Father was convicted of assault for publicly spanking his toddler. The SJC overturned that conviction and alluded to spanking being “widely regarded as permissible and warranted” in parenting. In one poll where viewers were asked whether spanking their children is a disciplinary method they would use, 76% answered yes compared to 24% who said no.

The Court, however, gave priority to the child’s safety when balancing between parental rights and protecting children against abuse in cases where it is difficult to distinguish between the two. The highest Court in the state found that public spanking where the child was not injured did not toe this line and was clearly not abuse.

Child advocates across the state are expressing concern over this decision, objecting to the idea that spanking can safeguard or promote the welfare of the child. The advocates note that research shows spanking has long-term negative psychological effects on children. School officials and other mandated reporters say when it comes to reporting abuse, they are not in a position to determine a parent’s intent or reasonableness in spanking a child.

The Court came down on the other side, finding that spanking when preventing or punishing misconduct can be reasonably related to promoting that child’s welfare. However, the Court did set some boundaries stating that the force used must not cause or create the risk of causing injury beyond fleeting pain or minor, temporary marks.

Many teachers, social workers, and concerned citizens hope that the Massachusetts State Legislature will draft legislation that clearly outlines what constitutes child abuse and prohibits parents from physically assaulting their children. As of this recent decision, when it comes to parenting, Mothers, Fathers, and guardians are privileged in spanking their children to a “reasonable” degree.

Special Needs Trusts (SNT's) and Section 8 Housing Eligibility

By Melissa A. Levine-Piro, Esq.

As a law firm, Levine-Piro Law does extensive estate planning for our clients, including the drafting of Special Needs Trusts (SNT’s). A Special Needs Trusts is a carefully drafted trust that allows someone with special needs (the beneficiary) to receive disbursements from the trust without jeopardizing their public benefits, specifically Social Security and Medicaid. Many people with special needs are in Section 8 housing, which is short for Section 8 of the Housing Act of 1937. This Act provides rental housing assistance to landlords so that they can offer low-income housing. To qualify for Section 8 housing, applicants must disclose their income from all sources and meet eligibility requirements.

A recent case presented to the court challenged a housing authority’s decision taht income from a Special Needs Trust counted as income for purposes of Section 8 eligibility.

The Federal Court, in DeCambre v. Brookline Housing Authority (D. Mass., No. 14-13425-WGY, March 25, 2015) said YES and in doing so determined that the beneficiary of a Special Needs Trust in this case was no long eligible for her housing voucher.

Facts of the Case: Kimberly DeCambre was the beneficiary of a special needs trust that was funded with the proceeds from a $330,000 personal injury settlement. Due to extensive injuries, she received Social Security Income and Medicaid and she also received a Section 8 Housing Voucher. The Special Needs Trust was set up to distribute to Ms. DeCambre money for her care and maintence as necessary. Between 2012-2013 the SNT had disbursed over $60,000 to Ms. DeCambre. Because the SNT had disbursed her $60,000, the Brookline Housing Authority who administered the Voucher, informed Ms. DeCambre she was no longer eligible for Section 8. Ms. DeCambre filed suit claiming that the trust disbursements should not be counted as income. The U.S. District Court for Massachusetts ruled that the Brookline Housing Authority properly terminated Ms.DeCamre’s Section 8 Benefits.

If you have a Special Needs Trust drafted for the benefit of a family member or you’re thinking about doing so, make sure you employ the services of an experienced family attorney. Levine-Piro Law offers free 30 minute consultations by phone or in person at our Maynard or Quincy offices.

Massachusetts New Sick Leave Law

Approved by Massachusetts voters in November of 2014, the Earned Sick Time law will go into effect on July 1, 2015. The new law allows for employees to earn and use sick time as long as they meet certain conditions. The law will impact all Massachusetts employers and employees.

Who is eligible?

If your primary place of work is Massachusetts, or in other words you work over 50% of your time in Massachusetts, then you are eligible to accrue and use earned sick time.

How much sick time can an employee accrue?

Employers with 11 or more employees, part-time or otherwise, must provide employees with paid sick leave. Employers with less than 11 workers must provide unpaid sick hours at a minimum. For every 30 hours that an employee works, their employer is required to give them a minimum of one hour of sick leave. There is a maximum of 40 hours of sick time to be accrued per year for each employee. These hours begin to accrue on the date of hire or on July 1st, whichever date comes later. Employees are first able to use sick time on the 90th day after hire.

How is the pay of earned sick time calculated?

Sick leave pay must be at the same hourly rate that the employee earns at the current time of the paid sick leave. For hourly employees, that means the same base wage rates and benefits apply. For employees paid on a fee or salary basis, the amount of pay received amounts to the earnings of the last pay period divided by hours worked.

When can an employee use earned sick time?

(1) To care for the employee’s child, spouse, parent, or parent of a spouse, who is suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical care, or preventative medical care
(2) To care for the employee’s own physical or mental illness, injury, or medical condition that requires home care, professional medical care, or preventative medical care
(3) To go to a medical appointment or a routine medical appointment for the employee’s child, spouse, parent, or parent of spouse
(4) To address the effects of domestic violence.

Employees should always notify their employers when using sick time. If an agreement can be reached with the employer, an employee can prevent using accrued sick leave by scheduling in extra hours to work to cover the time missed. However, an employer can in no way force an employee to do so if the employee wishes to instead use up their accrued sick time.

What about unused sick time?

Employees can carry over a maximum of 40 hours of unused sick time to the next year. Unlike unused vacation time, an employer is not required to pay out unused sick time at the end of employment.

Can an employer ask for certification on sick time use?

Employers can require certification if and only if an employee uses sick time for more than 24 consecutively scheduled work hours. Employers may not suspend payment during that time however.

What if an employer violates this sick time law?

Employers who interfere with the exercise of the paid sick time law will be held accountable and can be charged by employees in court for up to 25,000$ per violation. Additional civil suits may be filed as well by employees to account for the legal fees and treble damages associated with the previous case.

Is there a posting requirement?

Yes. A multilingual copy of the notice prepared by the attorney general must be posted in a known location and copies must be provided to employees.

What about existing sick time policies?

As long as the old sick time policy is in accordance with the new one and provides at least the same amount of time off, then there need not be any change to the old policy. The new law does not require employers to lower their existing obligations if they are more generous than those in the proposed law, as the new law does not override existing employer obligations.

How should employers prepare for this?

Employers should review their current sick time policies to make sure they are in accordance with the new law. They should also make sure that their records regarding accrued sick time are well organized and accurate.

If you as an employee or employer have any further questions or are in need of legal services, contact Levine-Piro Law for a free 30 minute consultation at 978-637-2048 or email office@levinepirolaw.com

Judge rules divorce papers can be served via Facebook

By Virginia A. Dyer, Associate Levine-Piro Law, PC

On March 27, 2015 the Supreme Court in New York County made a decision that allowed a Wife to serve her Husband via Facebook. Ellanora Arthur Baidoo v. Victor Sena Blood-Dzraku, 2015 NY Slip Op 25096 by Matthew F. Cooper, Justice.

Service of process in New York differs from Massachusetts, however, the end result is the same: that the Defendant be notified that their spouse has filed for divorce. In Massachusetts under Mass.Dom.Rel.P. Rule 4, it is required that the Defendant in a divorce be served in-hand with the Summons, Complaint for Divorce and the Track Assignment Notice. Under the Massachusetts rules the Plaintiff, if attempts to serve the Defendant fail, can petition the court for alternative service such as service through publication. The Motion for Publication is printed in the local newspaper in the area of the Defendant’s last known address. Alternative service can also include serving the Defendant at their place of business rather than at home.

The Plaintiff in Baidoo had to show that it would be impracticable to attempt to serve the Defendant in person; that it was an impossibility, and that substitute service at his abode or business was not possible, as the Plaintiff did not know where the Defendant lived and he claimed not to be working. The Plaintiff’s reasoning was that she had to show that sending the summons through Facebook could reasonably be expected to give the Defendant actual notice of the divorce.
As in Baidoo, it is not uncommon that a Plaintiff would not have the current address of their spouse especially if the parties had been separated for a period of time or if one of the parties had moved. The problem with Service by Publication is that the majority of people do not read the newspaper anymore and especially not the legal notices section where it would be published. Also, it is cost prohibitive. The NY Times charges upwards of $1,000.00 per week for the Notice and like here in Massachusetts, the notice must run for three consecutive weeks. The average person does not have $3,000.00 to use for publication of a Notice that the Defendant is highly unlikely to ever see. Where social media is now more commonplace than regular mail and even e-mail, social media seems a more prudent and efficient way to effectuate service.

Additionally, as long as you can identify that the Facebook page belongs to the person who you believe is your spouse, you can often track how frequently someone accesses their page by their posts. Ms. Baidoo filed an Affidavit that she had contact with her husband through Facebook and was able to identify that it was indeed her husband’s page, that it was a picture of him, and that the exchanges were between her and her husband, and that her exchanges with her husband showed that he regularly logged on to his account. The Wife also had his cell phone number and both she and her attorney could call and speak with him or leave a message or text alerting him that a divorce action had been commenced and that he should check his Facebook account.

Ultimately in Baidoo, the court considered that the Wife and Defendant had never lived together; that the Defendant had vacated the last known address four years earlier; that the Wife did not have an e-mail for the Defendant and had no way of obtaining one; that the Wife did have the Defendant’s phone number and spoke with him on occasion; that Wife hired an investigative firm to assist in locating the Defendant and had been unsuccessful; that the post office had no forwarding address for the Defendant for his prepaid cell phone; that the Department of Motor Vehicles had no record of him, and that she contacted the Defendant by Facebook and he had responded to her messages. In Massachusetts, a Plaintiff does not have to go these extremes to prove that they cannot effect service.

While this case is one of first impression on a state level regarding divorce, there are some federal and state cases that are split on accepting and rejecting service by social media. In cases where service was permitted it was with the caveat that service also be attempted by another method as well. Baidoo dispenses with the additional requirement of two forms of service and allows the judicial system to embrace a new method of service that will actually have a greater chance of giving notice to Defendants. The court granted permission to serve the Defendant with the divorce summons using a private message through Facebook. The court was specific that because litigants are prohibited from serving other litigants, the Wife’s attorney shall log into the Wife’s Facebook account and message the Defendant by first identifying himself, and then including either a web address of the summons or attaching an image of the summons.

This form of service will be more efficient and cost-effective for Plaintiff’s filing suit and will afford Defendants the opportunity to get notice timely and be afforded the opportunity to participate in proceedings.

For more information or to set up a free consultation about Divorce or other Family Law issues, please contact Levine-Piro Law at 978-637-2048 or email office@levinepirolaw.com.
(Citing Article by Rick Couri KRMG – Tulsa, Oklahoma: Judge rules divorce papers can be served via Facebook http://m.whio.com/news/news/national/judge-rules-divorce-papers-can-be-served-facebook/nknfk/)

Automatic Restraining Orders in the Probate and Family Court

By Virginia A. Dyer, Esq., Associate Levine-Piro Law
The automatic restraining order relates to financial, health insurance, and beneficiary issues of parties to a divorce.
When a Party files for divorce or separate support a Divorce/Separate Support Summons is issued. The Summons is required to be served with the Complaint on the other spouse. On the first page of the Summons is the automatic restraining order rule. The rule is effective as of the date of the filing of the Complaint for the Plaintiff who filed it and for the Defendant it is effective as of the date of service of the Summons and Complaint. The Automatic Restraining Order applies to both parties. The restraining order stays in effect for the pendency of the action.
The restraining order remains in effect during the pendency of the action, unless it is modified by agreement of the parties or by further order of the court and is automatically vacated upon entry of a judgment of divorce or separate support.
The Supplemental Rule states:
1. Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property, real or personal, belonging to or acquired by, either party, except: (a) as required for reasonable expenses of living; (b) in the ordinary and usual course of business; (c) in the ordinary and usual course of investing; (d) for payment of reasonable attorney’s fees and costs in connection with the action; (e) written agreement of both parties; or (f) by order of the court.

2. Neither party shall incur any further debts that would burden the credit of the other party, including but not limited to further borrowing against any credit line secured by the marital residence or unreasonably using credit cards or cash advances against credit or bank cards.

3. Neither party shall directly or indirectly change the beneficiary of any life insurance policy, pension or retirement plan, or pension or retirement investment account, except with the written consent of the other party or by order of the court.

4. Neither party shall directly or indirectly cause the other party or the minor child(ren) to be removed from coverage under an existing insurance policy, including medical, dental, life, automobile, and disability insurance. The parties shall maintain all insurance coverage in full force and effect.

A party can be found in contempt of court if they do not follow the automatic restraining order during the pendency of the court proceeding. This does not mean that the parties can’t go about their day to day lives, but it does mean that neither party can dispose of marital assets.
For questions regarding the automatic restraining order, divorce, or other family law issues, contact Levine-Piro Law for a free consultation, 978-637-2048.

How long does it take to get a Divorce in Massachusetts?

By Virginia A. Dyer, Esq., Associate Levine-Piro Law

There are two types of divorce in Massachusetts. They are uncontested divorces and contested divorces.

Uncontested Divorce.
An uncontested divorce is where the parties have come to an agreement regarding the division of their assets and liabilities, child custody and visitation issues, if any, and the rights and responsibilities of each party. The couple would file a Joint Petition, the Separation Agreement and other required documents. The filing fee is $215. In most instances the couple can walk into court on an agreed upon day and get divorced. The divorce will become final 120 days from the date of the divorce. The parties will save considerable time and money by negotiating and coming to an agreement. If the parties do not want to spend the money retaining attorneys and want to come to an agreement, an attractive option to help them do so is mediation. Many law firms, including Levine-Piro Law, offer divorce mediation services. In the case of mediation, the mediator who is a lawyer, will act as a neutral third party and help the parties work toward a complete agreement. Once the parties are in agreement on all issues the mediator can draft a separation agreement for the parties and all the filing documents for the parties to bring to court. For more information on mediation, please visit Levine-Piro Law’s mediation page at http://www.middlesexmediation.com/.

Contested Divorce
A contested divorce is where there the parties cannot agree to the division of assets, child custody, visitation and financial rights and obligations. The filing fee would be $215, plus $5.00 for the cost of the Summons. The filing party would have to serve the Complaint for Divorce and accompanying documents on the other spouse in-hand by the Sheriff or Constable’s office in the county where the spouse lives. After filing the Complaint for Divorce, the court sends a Tracking Order, which indicates how long the court anticipates the case will take through the court. Cases that have fewer issues typically take about eight months depending on the court’s schedule. Cases that have significant financial or child custody and visitation issues are anticipated to take about 14 months. It is important to note that there are any number of reasons that the case could take longer. The court uses the Tracking Order to prevent cases from lingering indefinitely due to non-activity or failure to settle.
If the parties in a case are unable to come to a settlement agreement then the case will go to trial. The majority of divorce cases do not go to trial, and the Court schedules Status Conferences and Pre-Trial Conferences to keep the parties on track and to help the parties with settlement. Most of the family courts in Massachusetts now offer conciliation which is a free or low cost mediation program to help parties reach an agreement on contested issues.
If a contested divorce is able to settle within the first six months of the complaint being filed then the parties can can convert their Complaint for Divorce into a Joint Petition and file their Separation Agreement at any time. As mentioned before the divorce will become final 120 days from when the court enters the Judgment Nisi. Contested divorces that settle after the first six months become final 90 days from the date the Judgment Nisi is entered.

For divorce or other family law related questions, or to schedule a free consultation, call the experienced attorneys at Levine-Piro Law at 978-637-2048.

Calculating Child Support In Massachusetts

General Information Regarding Child Support

Generally speaking the non-custodial parent pays child support to the custodial parent. Child support is calculated by taking into account both parties gross weekly income, the number of children, and giving credits to the parent who pays health insurance and/or child care costs.
You can calculate child support by using the following worksheet: http://www.mass.gov/courts/docs/forms/probate-and-family/cjd304-worksheet-child-support-guidelines.pdf.
Before going to court you should use the above worksheet and print the results to bring with you.
In addition to child support the court may order each parent to pay a percentage of the costs for extra-curricular activities, uninsured medical expenses, summer camp, and educational costs.

Joint Custody/Co-Parenting Situations
More and more frequently parents are sharing custody and are working together to co-parent. In this situation the child support calculation is a little more complicated. Using the above referenced worksheet, child support is first calculated with Parent 1 paying Parent 2. The child support calculation is then run again with Parent 2 paying Parent 1. The difference of the two calculations is the amount in child support the higher earning parent pays the lower earning parent.

Deviating From The Child Support Guidelines
In some circumstances the parties may agree to deviate from the child support guideline amount. In these circumstances it is necessary to get permission from the court to do so and there must be a reason for it.

Modifying Child Support
The amount of child support being paid is always subject to modification if there is a substantial change in circumstance or if the amount of child support being paid is no longer consistent with the amount under the Child Support Guidelines.

If you have questions about child support or other family law related issues, please do not hesitate to contact Levine-Piro Law for a free consultation. 978-637-2048.

Common Landlord Tenant Problems in Massachusetts

There are many great benefits to being a landlord. It is a great way to make money if you are smart about it. Getting the rent every month can go towards paying off the property and eventually providing an income although being a landlord is not without some problems. Landlords and tenants can undergo many types of disagreements. Some of these are covered under the law and can be handled with an attorney, while others should be handled with proper communication.

Repairs
One of the most common landlord and tenant issues is who is going to handle the repairs. This could be anything from a broken garage door to a dishwasher that is leaking. Usually, the leasing contract will specify who is responsible for repairs, although some may not. When a contract is devoid of these details, it can be a mess trying to go back and forth regarding who should take care of it. This is why it is so important to spell out each parties responsibilities right from the start.

According to the law, tenants are responsible for keeping the home habitable. If repairs need to be made to the home and the landlord refuses to handle it, the tenant is able to hold rent until the repairs are made. The tenant even has the right to sue the landlord in the event the landlord refuses to handle it properly.

Lease Breaking
Another common issue between landlords and tenants is lease breaking. At times, tenants must break their lease. This could be due to a job change, lack of money, or other issues. Tenants are responsible for fulfilling their contract by staying in the rental for the entire term.

As a landlord, they are able to take action against a tenant to ensure the lease is fulfilled. The landlord has several options to ensure it happens. They can withhold the security deposit, ask that the rent be paid in full, or even have the tenant help find a replacement. If the landlord fails to keep the home habitable, the tenant does have a right to move out.

Cleanliness
It is important that the home remain clean. This means the tenant is responsible for taking care of the premises and not damaging anything. They are also responsible for cleaning the home including sweeping, vacuuming, washing dishes, and emptying the trash. Failure to do this could result in a loss of the security deposit, an additional fee on top of the rent owed, or eviction. If the home is not kept up properly, the landlord could lose money on the home. A landlord relies on curb appeal to keep the value of the home intact. When a tenant refuses to keep a nice looking home, this can devalue the home.

If you find yourself in the middle of a dispute with your landlord or tenant, it is important to know how the law perceives it. You also want to have the contract readily available so you have the proof that is needed to guide your course of action. If nothing else works, it may be time to hire a lawyer to help.

What Do You Need to Know About the Lemon Law in Massachusetts?

The State of Massachusetts defines a lemon as a new or leased vehicle that impairs the use, the safety, or the market value and which has not been properly fixed even after a reasonable number of tries. Lemon law cases are very common in Massachusetts and the Lemon Law is designed in a way to give protection to the customers that have serious defects in their new or leased vehicles.
Lemon law applies to new motorcycles, cars and trucks which are bought or leased in the state of Massachusetts from an authorized car dealer for personal use. The law does not cover vehicles that are used for business or for off-road purposes. Also, the law does not cover accidents, acts of vandalism, or unauthorized repairs from the manufacturer or authorized agent. Also, be aware that not all car problems are serious enough to qualify for the law’s protection. The coverage is valid only for one year from the original date of the delivery or fifteen thousand miles of use after the original date of delivery, whichever comes first.
If you want to take advantage of this lemon law, you have to specifically point out how the defect impairs the usage of the vehicle, how it endangers those who use the vehicle, and how its market value is depreciated. You also must provide proof that there were at least three tries for fixing the vehicle and to show that those tries had not improved the situation in any way.
In case of a dispute, arbitration is an informal and less expensive way to resolve the matter. Both sides have a chance to provide evidence regarding the vehicles condition. You have an option to do this with a manufacturer-sponsored arbitration or with a state run arbitration. The main difference between these two arbitrations is that the state arbitration is basing its decision on the standards from the lemon law, while the manufacturer does not. Decision can be expected within 45 days if the arbitration is done by the state, and an additional three weeks are necessary if the manufacturer decides to file an appeal. The time frame for completion in manufacturer sponsored arbitration is much shorter.
You may refuse the arbitration and take this issue to the court. However, you need to meet some requirements from the lemon law in order for the judge to easily bring a decision that will be in your favor. If you do not meet certain requirements, that can lead in some possible penalties and fines for you. That is why it is best to consult Levine-Piro Law as a quality Massachusetts-based law firm that can properly handle your case.
If the lemon law is on your side, then you can hope to get a replacement vehicle or you could get a money refund. If you get a replacement vehicle, it usually comes in a similar make and model. You will also get reimbursement for sales tax and registration fees. If you want a money refund, you will get a full price on the purchase including the allowances and the credits, but lowered based on the mileage that you have driven the vehicle.

3 Tips To Get Ready For Divorce

As with most major changes in life, divorce can be a time of stress and upheaval. However, with a little preparation, you can make the change a little easier and possibly help influence the odds to fall in your favor if you fear your spouse may try to make things difficult. A good divorce lawyer can help with nearly every step of the process.

Find Your Support

Having a support structure you can rely on is arguably the most important thing you can do when going through a divorce. Find friends and family members who will support you and help you when you need a clear head around. You also need to find a divorce lawyer you can trust. Finding the right lawyer for you is important; it must be someone you can trust and be comfortable with, and someone who you think will work well in negotiations with your spouse. You may wish to get recommendations from friends, but keep in mind that the divorce lawyer who worked for them may not work as well for you. The internet is a great resource to look for reviews and opinions on lawyers near you.

Be Civil

This tip cannot be stressed enough. It can be difficult to keep a clear head when tensions are high, but losing your temper, getting angry, or reacting to provocation can have a drastic impact on your divorce proceedings. If things get out of hand and Court Order of Protection (colloquially known as a restraining order) is issued, it can have a hugely negative impact on how you come out of your divorce. Your divorce lawyer can likely give you a time estimate, but in most cases, divorce cases are not over quickly, and can become long and drawn-out, especially if you stand firm in your terms. Finding a way to be civil with your spouse despite any disagreements you may have can make this difficult process much easier.

Knowledge is Power

As soon as you see a divorce on the horizon for you, you should start learning as much about the process as possible. Read books, research the court processes online, and ask your divorce lawyer any questions you might have as you learn more. You also need to know about yourself — knowing your income, your assets, and your property is essential. You can take photos or video around your home or start a ledger of your belongings, in case some of these things disappear. Copy everything, especially financial records, and make sure your lawyer has copies of all of these things as well. Most importantly, know what you want. If you are unclear in your desires or change your mind often, your divorce can drag on much longer than necessary. Make a list of what you want and be clear about which ones you are not willing to budge on. Knowing what you’re willing to fight for ahead of time can make your divorce lawyer’s job easier and make the process go much smoother.