Swimming Pool Accidents in Massachusetts

In Massachusetts if you are the owner of a private pool, either as an individual, corporation or perhaps part of a club or association, or if you manage a semi-public or a pool open to the public you are responsible for knowing the regulations and laws regarding pool safety.

Finding laws or regulations that govern safety issues for pools in Massachusetts can be a bit difficult. The Commonwealth of Massachusetts adopted the 2009 International Building Code, which governs swimming pool enclosures and safety devices. Here are several codes and regulations often overlooked by pool owners.

Massachusetts code states that residential pool owners must have a barrier covering their pool when not in use. The barrier should not have openings in it that would allow the passage of a 4-inch diameter sphere. The pool should also have self-closing gates. [Read more…]

Field Sobriety Tests in Massachusetts

In order to identify citizens who are driving under the influence of alcohol and certain drugs, police will often use Field Sobriety Tests to determine if a driver is under the influence. A driver is said to be under the influence of alcohol if their blood alcohol concentration is above 0.08%, and in commercial drivers the limit is set at 0.04%.

If a police officer believes that a driver is intoxicated, they may ask the driver to submit to several field sobriety tests. The horizontal gaze nystagmus test, the walk and turn test, and the one leg stand test are 3 field sobriety tests that are often used.

 The horizontal gaze nystagmus test can identify the use of alcohol or other drugs that depress the central nervous system by showing a nystagmus in the eye. A nystagmus is involuntary bouncing or jerking of the eyeball that occurs when one looks to the side. This involuntary bouncing or jerking can be either caused by alcohol intoxication or the use of other drugs such as inhalants or phencyclidine (aka PCP or Angel Dust). Alcohol and certain other drugs depress the central nervous system making it difficult for the brain to control the eye muscles. To administer the horizontal gaze nystagmus test, a police officer will position an object such as a pen or a finger about a foot away from the driver’s view. The officer will then note any bouncing or jerking movements of the driver’s eyes as they follow the pen with their eyes from side to side. [Read more…]

Are Parents Held Accountable for “Social Hosting” ?

It’s well-known that the legal drinking age in all states, including Massachusetts, is 21. However, what about “social hosting”? Social hosting refers to providing alcohol or other illegal substances to a minor that is not your own child on your property or in an environment you control. Especially during graduation time, some parents reason if they provide alcohol at a party at their private residence in a safe environment, ensuring that minors do not drink and drive, they are not committing a crime. Massachusetts’ “Social Host” law says that they are. Consider the consequences and situations covered by this law.

  • You could pay fines and go to jail. The penalty in Massachusetts for “social hosting” is a fine up to $2,000 and/or prison time for up to one year. Of course, if injury occurred, such as if a child died in an accident after leaving your home, you could be convicted of more serious crimes, resulting in a longer prison sentence.

[Read more…]

What is Massachusetts Personal Injury Protection (PIP)?

In Massachusetts, when you’re injured in an auto accident, your insurance policy’s Personal Injury Protection (PIP) coverage should pay your medical bills and other expenses, but those aren’t the only benefits you’re entitled to recover. If you sustain a serious injury, an experienced personal injury attorney could also negotiate a settlement for damages due to your pain, suffering, any permanent disabilities, and lost wages.Massachusetts automobile statutes allow injury victims to collect additional damages from the legally responsible party if injuries or medical bills meet or exceed PIP tort thresholds.

PIP Tort Threshold

Massachusetts No Fault Laws recognize that injuries can have a significant impact on your life. The medical bills and lost wages covered by your Personal Injury Protection coverage were never intended to make up for permanent disabilities or other life altering conditions. The law gives you the right to sue the person who caused your accident if one of the following occurs. [Read more…]

What is reckless endangerment of a child under Massachusetts law?

When applied to children, it’s putting a child in grave danger due to negligence of a particular act. In the state of Massachusetts, it usually works under two different legal scenarios. The first is the act of creating the risk, and the second is not doing anything to prevent that risk.

Creating Substantial Risk

The first half of the Massachusetts reckless endangerment law needs to be proven in court before any injury claims may be made. Evidence needs to prove that the person who created the substantial risk to a child under 18 did it in a way that caused severe bodily injury. Those injuries could be from driving recklessly in a vehicle to sexual abuse.

[Read more…]

Am I Entitled To My Wife’s Inherited Property As Part Of The Division Of Divorce Assets?

Massachusetts is known as an equitable division state wherein the Court under M.G.L.c. 208 §34 considers a number of factors in dividing up the estate.  Among those factors are the length of the marriage, the conduct of the parties during the marriage, the age, health and station, occupation, amount and sources of income, vocational skills, employability future estates, liabilities and needs of each party.

It doesn’t matter if you were the primary wage earner or your contribution was that of a homemaker, the Court will look at all factors.

As it pertains to inherited property, the Court looks at when the inheritance came into the marriage, the length of the marriage and the possibilities of future acquisition of assets from other sources.  While there is no set formula, there are some judges that will grant the spouse who doesn’t inherit 1.5% for each year of the marriage.  However, it should be noted that judges have a fair amount of discretion and as long as they don’t abuse that discretion, they won’t be overturned.

How Much Of The Marital Assets Am I Entitled To Keep Upon Divorce In Massachusetts?

Massachusetts is known as an equitable division state wherein the Court under M.G.L.c. 208 §34 considers a number of factors in dividing up the estate.  Among those factors are the length of the marriage, the conduct of the parties during the marriage, the age, health and station, occupation, amount and sources of income, vocational skills, employability, future estates, liabilities and needs of each party.

It doesn’t matter if you were the primary wage earner or your contribution was that of a homemaker, the Court will look at all factors.

Generally speaking, if the marriage is a long term marriage and most of the assets were acquired during the marriage, the Court will look to divide up the assets equally.

Should You File as a Fault or No-Fault Divorce in Massachusetts?

Massachusetts divorce has specific rules that differ from some other states, specifically in two varieties of divorces. Filing for “no fault” or “fault” divorces might sound as simple as they sound. Regardless, both may not always be simple with “fault” divorces always being the most complicated.

Some of the details involved can make even a “no fault” divorce more complicated if there isn’t a specific reason behind a marital split.

The “No-Fault” Divorce

These type of divorces are easier in Massachusetts because they’re non-contested cases. It’s when a couple amicably agrees that neither one is to blame for the divorce despite knowing the marriage is over. When there’s a fortunate enough situation where there’s no contention, these type of divorces can usually be completed within a few months. But the court may contest such a move if there isn’t a clear reason behind whats deemed “irretrievable breakdown of marriage.”

That’s when “no fault” divorces can veer off into more complicated territory. It’s also why these cases are divided up into two subcategories. The first is when both parties agree to be involved in the proceedings. The second is when only one person in the couple files for a “no fault” divorce and the other doesn’t. A hearing is done six months after filing the complaint and where the other spouse can agree to the divorce or not.
[Read more…]

My Spouse Was The Breadwinner In Our Household So All Of The Assets Are Held In His Name. Am I Entitled To Half Of The Value In Massachusetts?

It matters little to the Court who has title to the assets.  If an asset was acquired during the marriage, it will be deemed marital property despite the asset being in one name or another.  Often time, people think that they can set aside the asset because it is in a trust, but that is not the case.  The Court looks at both the legal and equitable owner of assets, as well as when the asset was acquired.

How Is Spousal Support Determined In Massachusetts?

One of the most common questions when going through a divorce is about spousal support. Spousal support is often called alimony, and it is a word that many people hear but don’t quite understand. When you hear about divorces involving famous people, most often there are large amounts of money named. You may hear about alimony payments in the millions when a movie star divorces, or in cases of people who are very rich. But what if you or your spouse don’t earn more than six figures? Does alimony still come into play? The answer is simply that it could. Alimony is based on the financial situation of each spouse.

In Massachusetts, alimony can be awarded to either spouse, and is gender neutral. The judge bases the decision on several factors such as –

  • How long the marriage lasted
  • The age and health of each spouse
  • The income of each spouse
  • Employability or employment of each spouse
  • Any training required for one spouse to find employment
  • The contribution of each spouse to the marriage
  • The standard of living during the marriage
  • Any lost opportunity of a spouse during marriage

[Read more…]

What happens if after we settle we determine we need further medical care and or have permanent disabilities?

Additional Information: Several months ago, my daughter and I were involved in a serious car accident in Hudson, MA. My daughter suffered a brain injury, among other injuries and was diagnosed as clinically depressed after the accident. I am having continued dibilitating migraines and am being monitored by a neurologist. Since we don’t know what our future medical needs will be, how do they calculate an appropriate settlement? The insurance company has already offered a settlement and we have no idea if it is appropriate or not. What happens if after we settle we determine we need further medical care and or have permanent disabilities?

Attorney Answer:

Brain injury cases are extremely complex and need a team of professionals to properly evaluate the case and help you towards resolution. Most importantly it is important to get your daughter proper medical care with a neurologist and a neuropsychologist. They can help determine the extent and duration of your daughter’s injuries. A lawyer who has had experience in the area of head or brain injuries can use that information to settle the case with the insurance company or persuade a jury.

Isn’t there a law in Massachusetts banning texting while driving?

Additional Information:  I was involved in a automobile accident in Marlboro a few days ago.  The other driver admitted that he was texting on his cell phone when he ran the red light and hit my car.  I was taken to the hospital and have a broken arm, and ribs and will need physical therapy.  Isn’t there a law in Massachusetts banning texting while driving? How will that affect my personal injury case?

Attorney Answer
First, yes there is a law that bans texting and the fact that he was texting is evidence of negligence which is what would have to be proved if you were to recover. The violation of any law such as the texting law goes to the heart of proving that the defendant was negligent and ultimately responsible for your injuries. Also the fact that he ran a red light is also a violation of law and evidence of his negligence.

How do I get a divorce when she is out of state?

Additional Information:  How would I go about getting a divorce when she lives in another state and I live in Massachusetts? I sent her money to file for divorce but she never did. I am now ready to take the steps to do this myself.

Answer:

This question involves the somewhat complicated issue of jurisdiction. Generally so long as you were married or last lived together in Massachusetts and you are a resident, you can file a complaint for divorce here. You would have serve your wife the complaint through a sheriff or constable in the state where she resides and she would then be subject to the jurisdiction of the Massachusetts courts. Another alternative would be to hire a lawyer in the state where your wife resides and file a complaint for divorce there. Generally this would not be advisable as you will have to that state whenever there is a matter before the court. Ideally you should speak to a Massachusetts divorce lawyer who can help guide you through the process.

Is there a temporary modification to divorce agreement?

Additional Information:

As part of our divorce agreement I am responsible for providing health insurance for my ex-wife, and our children.  I just got laid off and it’s going to be difficult making ends meet.  After paying rent for my home in Marlborough, COBRA will be my second biggest expense.  Health insurance is available through her employer and is definitely less expensive than COBRA.  Can I request at least a temporary modification order?

ATTORNEY ANSWER:

The most important question to ask is whether or not your agreement is modifiable. If it is, you can have your attorney file a complaint for modification based on a material change of circumstances. The modification complaint would be on the sole issue of whether there was a material change in circumstances that would warrant a revision of the separation agreement.  [Read more…]

Ex spouse just received promotion, am I now entitled to alimony?

Additional Information:

My ex-wife and I got divorced just over 2 years ago.  She was recently promoted to partner at her Westborough law firm.  She now makes significantly more money than I do.  I supported her as she was studying to become a lawyer.  Am I now entitled to alimony and if so, what is the process to modify the divorce agreement?

ATTORNEY ANSWER:

There are two components to your question that need to be addressed. First, you should have an attorney review the agreement to determine if there was a waiver of future alimony and second the agreement must be viewed to determine whether it survives as in independent legal contract or if it is modifiable related to the issue of alimony. As you probably know Massachusetts has enacted a new alimony law which defines when alimony is warranted and for how long. It is important to review this law to understand how a judge might rule in your case.  [Read more…]

How do I modify a restraining order to have contact with my wife?

Additional Information:

Is it a violation of a protective order in MA to discuss matters with protected party if attorneys are present?  I have recently been served a restraining order which does not permit me with any contact with my wife, however, there are many things I would like to discuss, involving the children, reconciliation, therapy and counseling.  Do I need to file a motion to seek peaceful contact?  Would it help if my attorney or other party was there?

ATTORNEY ANSWER:

Yes, you would seek to modify the restraining order so as to allow you to either meet with her or communicate. This can be easily done by going to the court that issued the order and seeking to modify so as to allow contact.  [Read more…]

How do I protect myself and my child from abusive boyfriend?

Additional Information:

I recently filed charges for 2 incidents of domestic violence.   One of the incidents was about 6 months ago, the other was last weekend.  My live in boyfriend grabbed my throat and pushed me down a flight of stairs. I didn’t report the first incident because I was scared and he threatened to hurt my daughter if I told anyone.  How do I protect myself and my daughter?  We rent an apartment in Leicester. Will the landlord be required to change the locks?

ATTORNEY ANSWER:

The incident that you described is very serious and you should work first with your local police to get the protection that you need. Not only should you be getting  a restraining order, criminal charges should be pursued through the police for the assault and battery. You should also, as part of the restraining order, get a support order. The next thing that you should do is to hire an attorney and pursue custody and support orders in the Probate Court.  [Read more…]

Will my husband get half of this asset when we divorce?

Additional Information:

When my husband and I got married, instead of a having a big expensive wedding, my parents gifted me about $30K.  We ended up putting the money toward the down payment on our home in Shrewsbury that we bought together.  I am now filing for a divorce, will my husband get half of this asset?

 ATTORNEY ANSWER:

The key to your question is that they gifted the property and as such have made no condition of repayment. Judges in divorce actions attempt to divide up the marital assets in an equitable manner looking at a number of factors including the length of the marriage, the source of the asset and the contributions of the parties.

The judges are required to review many factors and as such you should certainly hire an attorney that works in the area of matrimonial law.   [Read more…]

Can my brother become my son’s gaurdian if I die or can my ex get custody?

Additional Information:

My wife and I got divorced two years ago and I got sole custody of our 5 year-old son.  My question is if I put it in my will that my brother will be the beneficiary of my home in Northborough and become guardian of my son if I die, will that happen or can my wife get custody if she wants?

ATTORNEY ANSWER:

Issues related to the care custody and wellbeing of children are almost always modifiable on a change of circumstances. Just because you have custody of your son now doesn’t mean that she won’t seek a revision of that at a later time if there is a material change of circumstances. You can put in a provision in your will that you would like your brother to be his guardian but the court may decide who is the best person to have custody based on the best interests of the child.  [Read more…]

If I know someone is dealing drugs do I legally have to tell the police?

Additional Information:

I’ve been dating this guy for about 4 months and found out he is dealing drugs. I’ve never been part of any of it, but I suspected it and just recently found out for sure when someone he obviously didn’t know came to his apartment in Boylston and there was an exchange.  I don’t want to get into any trouble and I don’t want him to get in any trouble.  Do I legally have to tell the police what I know?

ATTORNEY ANSWER:

This is very serious issue and you should definitely not speak to the police who if you provide evidence may also charge you with conspiracy. You should speak to legal counsel who can advise you regarding this matter to avoid legal action against you.  [Read more…]

Can we refuse to press charges so the case goes away?

Additional Information:

My friend and I got into a fight outside a bar in Berlin.  The police witnessed it and arrested us both for assault but neither wants to press charges against the other. So, is there anything we can do, like refuse to press charges so the whole thing goes away?

ATTORNEY ANSWER:

Unfortunately once the matter is in the Commonwealth’s hands, the District Attorney has the power to decide to prosecute and may do so if he has enough evidence to do so. There are a number of things that you both may do to avoid prosecution but you should speak to an attorney about a possible accord and satisfaction or a decision to invoke the 5th Amendment right not to testify or provide evidence. Under no circumstance should you try to negotiate with the District Attorney without legal counsel. [Read more…]

How do we handle the financial aspects of a divorce?

Additional Information:

My husband moved out of our Southboro home almost 2 years ago.  We’re on good terms with one another and share custody of our 2 children.  He currently pays for daycare for our son and I’d like to ask him to help with the children’s medical/dental expenses.  We have no assets to divide.

ATTORNEY ANSWER:

Unless and until you have orders from the Probate Court, you do not have anything that is enforceable at law. My advice would be to file a divorce action and seek temporary orders as soon as possible in order to establish the obligations for child support and medical insurance.  [Read more…]

Do we need to get a divorce in MA or can we stay separated indefinitely?

Additional Information:

I left my husband a couple of years ago and moved away (we were married in Marlborough, MA).  When I left, we just needed a break.   We have no kids, I don’t intend to remarry and I’m not on his health insurance or vice versa.  We haven’t kept in touch and I’m wondering if we can stay separated indefinitely?  Does leaving the marriage constitute abandonment or something like that?

ATTORNEY ANSWER:

You may continue to remain married but separated however your legal status would prevent you from legally marrying until you get divorced and being potentially liable for his actions (such as his debt ) until such time as you get divorced. My best advice is that if you don’t intend to get back together then you or he should file for divorce and resolve any outstanding issues in a divorce agreement.  [Read more…]

My 17 year old daughter was arrested for shoplifting. What’s the best way to handle this?

Additional Information:

My 17 year old daughter was caught for shoplifting at the Natick Mall.   She has never been in trouble with the law before and I was shocked she would try to steal a $20 DVD.  I thought it was handled by the store manager, but Natick police got involved and now she has to appear for a hearing.  She’s only 17 and has her whole life ahead of her.  I’d hate for this poor decision to follow her for the rest of her life. What’s the best way to handle this?

ATTORNEY ANSWER:

I would advise you to hire a criminal attorney familiar with the court system. While shoplifting cases are misdemeanors and it would not be likely to involve any harsh penalty, it would be very important to keep your daughter’s record clean as it may affect her for the rest of her life.  [Read more…]

Should we hire a criminal defense attorney for our son?

Additional Information:

Our son is a freshman in college at a Boston school and was home visiting for the holiday break.  While out with some friends he was arrested by the Sudbury police for possession of a small amount of cocaine. My wife and I want the best possible result for him and are contemplating hiring an attorney to defend him, but we’re not sure if it’s worth it.  Will he just end up with the same type of plea bargain?

ATTORNEY ANSWER:

Wouldn’t it be a shame to find out years from now that you should have hired an attorney to investigate and determine what defenses might be available to him. I often get calls from individuals who come to me years after the event and try to correct a situation that might have been remedied at the time. You should always hire an attorney when there is a serious charge like drug possession. That attorney would investigate whether your son has valid legal defenses and can advise you regarding the possible ramifications of any plea deal.  [Read more…]

I fell and injuried myself in a Southborough MA restaurant.

Additional Information:

I fell and injured my knee at a restaurant in Southborough.  The carpeting was loose.  There were several other patrons who tripped over the carpet before me, and this all happened in front of the hostess stand.  I’ve had knee surgery and continue physical therapy.  Do I have a case against the restaurant and can I sue for damages as I will probably not be able to participate in sports like I had in the past?

ATTORNEY ANSWER:

The owner of property has a responsibility to those who are on the premises legally to keep the property free from defects and to provide a reasonably safe environment. I believe that on the facts you have a strong case to hold the owner responsible for your injuries. [Read more…]

What’s our liability if our dog bites someone?

Additional Information:

We live in Framingham, MA and I just got a German Sheppard for my kids. My wife is concerned about our liability if the dog bites someone when she gets older. I thought this would be covered by our homeowners insurance.   Is that so? Thank you in advance for your help.

ATTORNEY ANSWER:

Massachusetts has a strict liability standard regarding injuries caused by animals and pets. The owner of the animal can be held liable for any injuries caused by the animal except in rare circumstances. [Read more…]

Will money earned after separation be awarded to my ex?

Additional Information:

My wife and I have been separated for over a year. I am living with a new partner and considering starting my own business. Will my wife have any claim on the monies when we go through the divorce?

ATTORNEY ANSWER:

Until the divorce has been finalized the court may divide up assets even though they may have been acquired after the separation. Therefore you should seek to get the divorce done as soon as you can to protect yourself. [Read more…]

In MA, can child support be modified without going to court?

Additional Information:

My ex and I have agreed to lowered payments and we have drawn up a new agreement which we both signed.  Is what we did legally binding or can she sue me for back child support?

ATTORNEY ANSWER:

The agreement should be filed and approved by the court in order for it to be valid. It would be necessary to file a complaint for modification and then seek to have the agreement brought before the judge. [Read more…]

Can you explain the law in MA regarding leaving the scene of an accident?

Additional Information:

My 22-year old daughter was involved in a minor accident in a shopping plaza in Framingham, MA.  She doesn’t know if she caused damage to the parked car she hit.  She left the parking area without leaving her contact information and now she’s wondering what she should do.  Can you please explain the law in this situation and her legal responsibilities? Thanks.

ATTORNEY ANSWER:

It is a crime to leave the scene after knowingly causing personal injury or property damage. There may be extenuating circumstances and she should contact a lawyer to discuss the facts of her case in order to determine how best to handle any charges that may be pending. [Read more…]

What is the difference between a felony and a misdemeanor in Massachusetts?

Additional Information:

What is the difference between a felony and a misdemeanor in Massachusetts? Does it have to do with whether you can go to jail or not if you get convicted or is it some other factor? Thanks.

ATTORNEY ANSWER:

Generally speaking the difference between a felony and a misdemeanor is the amount of time one would serve. A felony which is more serious  would be served in a state’s prison. A misdemeanor would be served in a house of correction or a jail. A felony charge would include crimes like murder, rape assault and battery with a dangerous weapon. A misdemeanor charge would include crimes like driving under the influence,larceny under $250.00 and a simple assault. [Read more…]

In Massachusetts, how are assets divided in a divorce?

Additional Information:

We have been married for over thirty years, unfortunately, I now realize that all of our assets are in my husband’s name.  Does this mean that if I file for divorce I will not get anything?

ATTORNEY ANSWER:

Not at all.  It matters little to a Probate Judge whose name the property is in.  Rather, the Judges in Massachusetts try to make an equitable division of all assets and liabilities, which generally mean that the property acquired during the course of the marriage, should be divided equally.

[Read more…]

I’ve witnessed some sexual harassment at work.

Additional  Information:

I have been working for this company for only six months.  While there, I have noticed that my boss has been sexually harassing some of my co-workers.  I have been asked to give a statement about what I witnessed, but I am worried that I will be fired.  What can I do?

ATTORNEY ANSWER:

If your employer were to treat you differently or terminate you, you would be able to sue him for retaliation.  Although it is never easy to stand up for someone else, if you do, you should be assured that the law will protect you.  If you fear this may happen, please call an Employment lawyer who concentrates in the area of trial work.

[Read more…]

In long term marriage with aggressive husband, how do I legally protect myself and our children?

Additional Information:

I have been married for over eighteen years and we have two children together.  Since the children were born, we decided that I would stay at home and raise them.  My husband has been getting more aggressive with me and I worry that things may happen.  I do not want to leave the house, as I have no place to go.

ATTORNEY ANSWER:

If you feel threatened or intimidated by your husband’s actions, or if your husband gets violent with you, you should call the police immediately.  They can help you get an Abuse Prevention Order, which will protect you.  You should then call a lawyer that concentrates in the area of Domestic Relations or Divorce.  That lawyer can file a motion for temporary orders to make certain that you get the protection from the Court that you need, as well as making sure that you get adequate child and spousal support.

[Read more…]

I am pregnant. Are there any laws protecting my employment?

Additional  Information:

I have been working for my company for over three years.  Recently I became pregnant and informed my supervisor of the fact.  Since that time, he has been acting differently towards me.  I am worried that I may be fired.  I know that I am an “employee at will” according to the employee’s handbook, but I wonder if there are any laws protecting me.

ATTORNEY ANSWER:

Absolutely, Massachusetts has laws protecting employees relating to discrimination because of maternity.  M.G..L.c. 151B §4(1) and M.G.L.c. 149 §105D prevent against sexual discrimination in the workplace and discrimination based on maternity.  You should immediately call a lawyer who handles Employment Discrimination cases.

[Read more…]

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