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I was injured as a passenger of an Uber driver, who is responsible for damages?

If you’re injured in a ride-sharing vehicle, such as Uber or Lyft, you have a right to get compensation for your injuries and other damages.

Financial responsibility typically falls on the insurance company of the at-fault driver, which may be the ride-sharing company’s driver or another driver involved in the accident who caused the crash.

The ride-sharing driver’s car insurance coverage will apply to passenger injuries only if the driver has a commercial insurance policy or a personal car insurance policy with a special provision providing insurance coverage while engaged as a ride-sharing driver. However, many ride-share drivers do not have such coverage. Additionally, personal car insurance policy will probably have a “business use exception” that won’t cover damages and injuries that occur while the insured is acting as a for-profit driver.

In the event the driver’s insurance will not cover passenger injury, Uber and Lyft carry third party liability insurance coverage which pays up to $1 million for personal injuries and property damage per accident. The third-party liability insurance will only cover costs when the ride-sharing driver is at fault for the accident, the ride-sharing driver’s own insurance has been exhausted, or, if the responsible driver is unknown, doesn’t have car insurance, or doesn’t have enough car insurance to pay for your injuries.

If the above insurance policies do not fully compensate you, or the insurance companies refuse to pay out, you can try going after the ride-sharing company itself. However, this should be considered a last resort option.

If you’ve been injured in a car accident and specifically while riding in an Uber or Lyft, contact us immediately to discuss your options.

Does Massachusetts have a 3 Strikes Law?

Many states, including Massachusetts, have what is called a “Three Strikes Law.” This rule mandates life sentences for repeat violent offenders.

Under this law, a Massachusetts judge must impose the maximum sentence for a person’s third violent felony offense. Any single person convicted of three separate felonies can be sentenced to 25 years to life in prison, even if each felony only carried a two-year sentence.

A felony is the worst class of crime you can be charged with, after an infraction or misdemeanor. Any time a U.S. Citizen is charged with a felony, they are entitled to a jury trial and legal representation.

Only specific felonies can be considered under the three strike rule. Massachusetts law outlines 41 different felony charges that constitute a ‘strikeable’ offense. Persons convicted of a third strike will serve the maximum penalty and have no opportunity for parole. Since the implementation of the three strikes law, Massachusetts has gone from having one natural life felony with no possibility of parole, which was first-degree murder, to nineteen natural life felonies, if indeed the felony is a third strike.

The three strikes law has a severe impact on the sentencing of people convicted of criminal offenses. Anyone facing a felony charge in Massachusetts needs to be represented by an experienced criminal defense attorney.

I was bitten by a neighbor’s dog a year ago, can I file a personal injury lawsuit now?

Each state has a law that sets a deadline for filing a personal injury lawsuit in the state’s civil court system after an accident. This law is called the “statute of limitations,” and the state of Massachusetts gives you three years to file a personal injury lawsuit.

The three-year time limit typically starts on the day of the accident, which would be the case in the event of a dog bite. If you don’t get your lawsuit filed within three years, you’ll lose your right to have a court hear your injury case.

Many states have a “one bite rule” where dog owners are protected (to some degree) from injury liability the first time their dog injures someone if they had no reason to believe the dog was dangerous. In Massachusetts, however, a specific statute makes the owner “strictly liable.”

The strictly liable laws state regardless of the animal’s past behavior, the dog owner is responsible for a personal injury caused by his/her dog. The dog bite statute holds the defendant liable if the plaintiff was legally allowed to be where he was when the bite occurred, and the plaintiff did not provoke the dog at the time of the dog bite.

If you have questions regarding a personal injury case, contact our office today.

My son and daughter-in-law are divorcing. As a grandmother do I have visitation rights?

Grandparents do have legal rights, however, regarding visitation, may require a court order under Massachusetts law.

In the event the grandparents and parents can come to an agreement regarding visitation, court intervention is not required. When no such agreement can be made, there are certain situations grandparents may be granted a court order allowing visitations.

Under Massachusetts law, grandparents have the right to ask a court for visitation if the parents were married and then divorced; the parents are still married, but they live apart, and there is a court order about the separation; or one or both parents are deceased.

In the event the parents never married and are living apart, paternal visitation, the grandparents on the father’s side, may be granted if the father has signed a “Voluntary Acknowledgment of Parentage” or there is a court judgment saying that he is the father, paternal visitation may be granted. Grandparents on the mother’s side, considered the maternal grandparents can ask for visitation if the father has not signed a “Voluntary Acknowledgment of Parentage” or there is no court judgment stating who the father is.

At a court hearing, the requesting grandparents will need to show visitation is in the child’s best interest, a relationship has been established, and that it will be very harmful to the child’s health, safety, or welfare in the absence of the grandparents.

Even if the grandparent did not have an important or well-established relationship with the child before the case began, the court could still grant visitation rights to protect the child from “significant harm.”

To have questions about your specific situation answered, give our office a call.

If I’m pulled over for a traffic violation, can I be penalized for refusing to take a breathalyzer test?

While it may be tempting to refuse a DUI test, it is crucial to understand the possible advantages and consequences.

You have the right to refuse to submit to any type of sobriety test, including breathalyzers. However, your refusal can have several additional consequences. While no one can be forced to give testimony against themselves, implied consent laws operate under the theory that when driving on a public roadway, you consent to the rules regarding driving while intoxicated.

Implied consent law is active in Massachusetts, and means that if you refuse to submit to a chemical test, you will be subject to a fine and automatic license suspension ranging from 180 days to 5 years. The length of your suspension will vary depending on your offense.

It’s also important to know that DUI law is the exception to your constitutional right to remain silent. DUI law is one of the few which allow prosecutors to comment on a defendant’s right to remain silent in some states.

The decision to take a sobriety test is solely yours. Most states will not allow you to put off submitting a test until you call and consult with an attorney. In many cases, this invocation of the right to counsel will be considered a refusal of sobriety or breath tests.

If you know you are not intoxicated, you may want to consider taking the breath test or sobriety test. However, if you are visibly intoxicated, taking any type of sobriety test is only going to garner more evidence against you as you will likely be arrested either way.

For the most up-to-date information regarding DUI law, give our office a call.

I recently discovered toxic mold in my apartment. Am I allowed to withhold rent until the mold is removed?

Landlords are urged to take mold seriously under Massachusetts law. Mold is considered a top environmental concern which can grow quickly.

Regardless of what may appear in a written lease agreement, landlords in Massachusetts are bound by “implied warranty of habitability.” This is a legal doctrine that requires providing tenants with apartments in livable condition. Tenants in Massachusetts have the right to pursue two common legal self-help strategies.

The first, known as “rent withholding,” is when tenants decide to stop paying rent, claiming the mold has made their apartment uninhabitable. The second strategy, known as “repair and deduct,” involves tenants taking care of mold cleanup on their own and then subtracting the cost from their rent.

Several conditions need to be met under Massachusetts law for these options to be legal. For example, regarding most rent withholding laws you cannot withhold rent if you are behind in the rent or in violation of a relevant lease clause. It is recommended that you place the withheld rent in an escrow account. You are also required to report the problem and give a reasonable opportunity to fix the issue. Additionally, the problem must be severe, not just annoying, and must imperil your health or safety.

Tenants who believe they have been harmed by the presence of high concentrations of mold in their apartment can try to recover damages from their landlord in court to compensate them for their loss. For help regarding harmful mold, give our legal team a call.

I’ve been estranged from my husband and want to remarry. Will Massachusetts grant me a Bifurcated divorce?

Bifurcation of divorce allows spouses to become legally divorced before the divorce details have been finalized.

The option to remarry is the most common use of bifurcation; however, some couples seek a bifurcation to distinguish between marriage or pre-marriage property.

In states that permit bifurcation, the court will handle the end of the marriage separately from the other divorce matters to permit the parties to remarry while providing additional time to resolve the remaining issues. This means all other resolutions such as child custody, visitation, support, distribution of property, and attorney fees are determined at a later date.

Individual states such as Texas, New York, Michigan, and Arizona do not allow bifurcation in divorce cases. Even if you are living in Massachusetts, if you were married in a state that does not allow bifurcation, it will not be granted, and all issues of the divorce must be resolved before the divorce is finalized and the couple can claim legal single status.

The process of bifurcation generally requires the filing of legal documents; however, both parties must agree to a bifurcated divorce before a court will grant one. There is an exception to this if the requesting party shows good legal cause for bifurcation and the court agrees that the action would not jeopardize the interests of the other party.

You should consult with a knowledgeable attorney before taking any action, as there are certain restrictions in place that can affect the process in various ways.

Can the police look at my cell phone if I am detained or arrested?

The Fourth Amendment to the U.S. Constitution protects you from unreasonable government searches and seizures, including your electronic and smart devices. Whether you’re being held under detainment or arrest, you still have protective rights.

To start, before speaking to any law enforcement official, you can state you do not wish to answer any questions without your attorney present. In many cases, law enforcement will ask you for permission to complete a search. This is the most common way searches are conducted, by people consenting to a search. You do not have to say ‘yes’ to a search.

Even when under arrest, a search of your phone data can only be conducted under limited circumstances. Following an arrest, the police generally search the items on your person and in your pockets, as well as anything within your immediate control. This is within their rights.

If a phone or other digital equipment is found, they can only examine the physical aspects of the phone. For example, an officer may remove the phone from its case or remove the battery. In the event law enforcement believes evidence on the phone is likely to be immediately destroyed, they can search your devices without a warrant.

Contact our office to learn more about your privacy rights in Massachusetts.

I’ve only been married for 2 weeks, am I eligible for an annulment?

In the state of Massachusetts, a court granted annulment means your marriage never legally happened. Each state’s legislative code sets specific guidelines for what constitutes an annullable marriage. Contrary to popular belief, you can’t annul a marriage based on a short duration. Massachusetts outlines seven specific grounds for annulment.

In Massachusetts, annulments require your marriage to be either void or voidable. There are three void marriage grounds: consanguinity, having a blood relation such as brother and sister or first cousins; affinity, meaning you’re related by marriage to your spouse; and bigamy which refers to either you or your spouse is legally married when the marriage in question was entered into. A void marriage is one that could not have existed in the first place because it was against the law at the time it started.

Additionally, there are four voidable marriage grounds. If your spouse concealed some important issue from you, fraud is a voidable marriage ground. Next, a duress ground means the marriage was entered into under threat or coercion. In the event, a spouse cannot perform sexually, and this knowledge was not disclosed before the marriage, the impotency ground may apply. Finally, if either you or your spouse was not capable of understanding what you were doing when you married, due to mental illness or being under the influence of drugs or alcohol at the time the wedding took place, mental incapacity is the fourth ground for a voidable marriage.

If you think you may qualify for an annulment in Massachusetts or have any questions, please contact our office to speak with an attorney.

Can the police look at my cell phone if I am detained or arrested?

The Fourth Amendment to the U.S. Constitution protects you from unreasonable government searches and seizures, including your electronic and smart devices. Whether you’re being held under detainment or arrest, you still have protective rights.

To start, before speaking to any law enforcement official, you can state you do not wish to answer any questions without your attorney present. In many cases, law enforcement will ask you for permission to complete a search. This is the most common way legal searches are conducted, by people saying yes when the police ask them if they can search.   You do not have to say ‘yes’ to a search.

Even when under arrest, a search of your phone data can only be conducted under limited circumstances. Following an arrest, the police generally search the items on your person and in your pockets, as well as anything within your immediate control. This is within their rights.

If a phone or other digital equipment is found, they can only examine the physical aspects of the phone. For example, an officer may remove the phone from its case or remove the battery. In the event law enforcement believes evidence on the phone is likely to be immediately destroyed, they can search your devices without a warrant.

Contact our office to learn more about your privacy rights in Massachusetts.

Does it really matter if I skip jury duty?

Yes—yes it does.

Skipping jury duty is an easy way to land yourself in completely unnecessary trouble. Massachusetts makes it rather difficult to miss or skip your service date. There are many chances to make right on your having skipped jury duty, but they are all time-consuming and potentially nerve-wracking.

After missing jury service, you will receive a “Failure to Appear” postcard. By phone or by mail, you can respond to this. If you have a reasonable excuse, such as illness, be sure to have a note from your doctor. You will then reschedule your service.

Ignoring this card (at your peril) will lead to a “Application for Criminal Complaint” summons to appear before a judge and explain yourself. You will likely receive a rebuke, and then be seated on the next available jury.

Not showing up to this initial hearing leads to the judge scheduling an arraignment date. Missing your arraignment date leads to a warrant for your arrest.

So don’t skip jury duty. Massachusetts makes it easy to make your service work around your schedule:

After receiving a summons in the mail, you should respond either online or in writing. You will receive a reminder notice in the mail about two weeks before your service date. The night before your service, you can call to see if you still need to report.

You can even reschedule your service online up to the day you are scheduled for. First-time rescheduling requests, by law, are always granted.

So stay out of trouble, show up for jury duty, and take pride in being part of our democratic legal system.

Does Massachusetts allow pain-and-suffering claims?

Massachusetts allows pain-and-suffering claims in some cases. Pain-and-suffering claims are considered “non-economic” in that they are not seeking to compensate for a price-tagged, financial loss caused either by damage to property or by high medical bills. The latter type are “economic” damages.

In Massachusetts, pain-and-suffering claims must usually be filed alongside economic claims. In the case of car accidents, medical claims must exceed $2000 before a pain-and-suffering claim may also be filed. For car accidents, Massachusetts law also expects victims to rely on their own, or the at-fault party’s, insurance coverage before suing.

Some states put “caps” on non-economic damage claims. In Massachusetts, there are no such caps, except in the case of medical malpractice. In medical malpractice cases, there is a cap of $500,000 that can be awarded in pain-and-suffering claims.

If you are seeking compensation for the financial and emotional toll of an injury, call our office today to discuss your options.

What is a common law marriage and how is it different from legal marriage?

When it comes to understanding common law marriages, there are a lot of misconceptions out there. You may have heard that a couple living together for 7 years or longer are automatically common law spouses. This is a false statement as common law marriage regulations are determined per state.

In fact, only 15 states recognize a common-law union, and Massachusetts isn’t one of them. Simply put, a common law marriage is one obtained purely through the conduct and relationship of the couple. Common law marriage does not require that the couple have a ceremony led by a justice of the peace, or that they obtain a marriage license. A common law family is a couple living together in a common law marriage situation with children.

States may choose to recognize common law marriages for various reasons, such as ensuring that no one is excluded from marriage for financial reasons or the belief that people should have the option to marry without government involvement. Criteria for a common law marriage is determined per state; however, all states require that the couple have the intent to be married.

While the state of Massachusetts does not recognize common law marriage, there are some exceptions. For example, families moving to Massachusetts from a state where common law marriage is recognized and meet the criteria for a common law marriage will be treated for all purposes as a legally married couple by the state of Massachusetts. The Full Faith and Credit Clause (Article IV, Section 1 of the U.S. Constitution) requires Massachusetts to honor the marriage laws of sister states.

Give our office a call for additional information regarding Massachusetts common marriage laws

I hear police say they are detaining a suspect while putting them in handcuffs. What is the difference between detention and arrest?

It’s important to understand the differences between detention and an arrest because your rights change drastically from one to the other.

Anyone can be detained. The police only need reasonable suspicion to stop an individual. It is required by law that when an officer stops someone, the officer has either a search warrant, probable cause to search, or reasonable suspicion. The term reasonable suspicion refers to an officer having objectively reasonable circumstances to suspect that a detained individual is involved in, or about to be involved in a crime. A 20-minute detainment is considered a reasonable timeframe for detaining someone according to the U.S. Supreme Court.

When people are detained, it is typically for questioning about a person’s identification and purpose for being in the location. While being held, a person may be subject to a ‘patdown’ search if the police have reasonable suspicion that a person may be dangerous. While this does not mean police can immediately search pockets of bags without permission, however, if an officer comes across a weapon they may seize it to protect themselves.

Use of a metal detector, a drug-sniffing dog, or a computer search to determine if the individual has any outstanding warrants for their arrest there are other legal methods of searching during detention.

My ex-spouse has asked to pick up our children, of whom we share custody, at a different time from that stated in our custody agreement. I’m fine with the change. Do we need to alter the agreement, or is a verbal agreement enough?

As an attorney, my answer is almost always going to be “get it in writing.” While you may have the most amicable divorce in the world, you never know what the future may hold. Contracts fill the gaps left when human trust fails.
If this is a one-time, or two-time situation, a verbal agreement might suffice. Of course, without putting it in writing, if you agree to a “quick change,” you may find yourself agreeing to a years-long arrangement without intending to.

Moreover, while it is hard to think about, custody agreements in part to protect children from the threat of parental abduction. Without having a firm time or day for the hand-off, you might find yourself more anxious for the return of your children than you need to be.

If this is a longer-term change, you should definitely alter the custody agreement. If both parents agree to the change, they can jointly file a petition with the court in a fairly simple process.

Whether you are working out an initial custody agreement or need to modify one that is no longer working for your family, come discuss your individual situation with our skilled family law attorneys.

I make my living in the arts. Does my spouse have a fifty percent share in rights to my works and the income they produce?

Yes and no.

Yes, in the sense that artistic works, along with patents, trade secrets, and many other “intangible” properties, constitute intellectual property. And intellectual property, in Massachusetts, is marital property.

No, in that Massachusetts does not assume “equal” (fifty-fifty) distribution of property between partners at the dissolution of a marriage, but rather “equitable.” Intellectual property falls under the requirement for equitable distribution.

In dividing something intangible, such as the rights to artistic works, Massachusetts family judges will, as with other forms of property, assess the relative contribution of partners to the marriage financially, emotionally, and logistically. Intellectual property has two sorts of value to be divided. The first is the rights to income from future royalties on a work or idea. Second, the present monetary value of a work or idea.

For creators or inventors, it may be wise to include provisions in a prenuptial agreement to protect your intellectual property. If you need help drawing up a prenuptial agreement, or if you are currently involved in a divorce without one, call our office today for expertise in handling intellectual property division.

What constitutes “malicious” destruction of property?

“Malicious” is what separates a crime from an accident that happened to destroy someone’s property. It is also worth noting that the statute covers both “destruction” and lesser “injury” to another person’s belongings, physical or digital.

In Massachusetts, the law is primarily concerned with three things: intention, motive, and cost of the destroyed property. The Commonwealth’s General Code states that destruction of property must be done “willfully” and “maliciously” in order to be a crime.

The “will” of “willfully” refers to intention, which keeps accidents in the realm of the civil courts. If one ran over a neighbor’s tulips while trying to navigate a very narrow shared driveway, this would be unlikely to result in criminal charges. If one lined up the tulips in one’s sights before running them over, this would be a different story.

The other part of the statute covers motive; this is where “maliciously” comes into play. If the destructive act was done out of anger, hatred, or revenge, and specifically targeted at the owner of the destroyed property, then it is done “in malice.” Returning to the tulips—if one had just fought with the neighbor before the destruction of the tulips, this could be interpreted by prosecutors as motive.

Penalties for malicious destruction of property are stiff, with jail time running up to ten years, along with fines in proportion to the value of the property destroyed.

If you’re facing charges of malicious destruction of property, call our office today to discuss your situation.

At a shopping center, I slipped on the wet floor and broke my tailbone. Would I sue the owners of the particular store, or of the entire complex?

Liability depends on many factors, primarily the exact location where you slipped and the cause of the wet floor.

Typically, an individual or corporation owns the building that comprises the shopping center. The owner or owners then rent out particular units to individuals or corporations. While the tenants are responsible for conditions within their particular units, the landlord remains responsible for conditions in the common spaces of the mall or shopping center. The first factor of many to consider was whether you slipped inside a particular store or in an area for which the landlord is responsible, such as a corridor, a food court, a parking lot, or a restroom. It is similar to if you were to slip in a friend’s apartment kitchen, for which they are solely responsible, versus slipping on the stairs your friend’s landlord was contractually remiss in de-icing.

From here, the issues of liability become much more complicated, revealing why it is so important to consult a personal injury attorney as you pursue compensation for your medical expenses, lost wages, and pain and suffering:

• Why was the floor wet? Was it sloppy housekeeping? Was the landlord or the tenant responsible for housekeeping in the area where you fell? Was a third party hired for housekeeping, making them partially liable as well?

• If the wet floor resulted from leaking pipes, poorly maintained pavement, or unmarked hazards, the hazard may have resulted from the negligence of the landlord, even if you slipped and fell.

As you have seen, liability is a complicated question. Call our office today to discuss your options. Our experienced personal-injury attorneys will work to make sure you receive the absolute maximum for your suffering.

The MA state police face ongoing scandals over altering police reports and overtime sheets. Does this give me grounds to contest or question state police reports used against me in court?

The ongoing revelations of misconduct by the State Police are certainly disturbing. If you have not been following the scandal over the past year, here is a summary of what we have learned so far:

-There has been widespread abuse of the overtime system by state troopers at least since 2011. Troopers would claim overtime for shifts they never worked. The practice was known about within the State Police at least since 2011, according to recent reporting in the Boston Globe.

-The overtime abuse was so rampant within Troop E of the State Police that authorities have dissolved it rather than attempt to salvage it.

-Separate from the overtime issue, the former head of payroll at the State Police pleaded guilty early this summer to stealing almost $24,000 from the agency.

-The top two officials at the State Police resigned after whistleblower troopers alleged they had ordered them to alter an OUI incident report because the driver was the daughter of a prominent judge.
It is this last scandal that provides the greatest opening for contesting State Police’s evidence, but since it is a one-time incident involving a high-profile defendant, it may not provide as much help to you as if the State Police altered police reports as often as they altered their overtime sheets.

Our attorneys are committed to pursuing all avenues to fight criminal charges against you or appeal your conviction. Schedule a consultation with us today to discuss the particulars of your situation and start putting together a plan for your legal defense.

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…]