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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.

What is the difference between a revocable and irrevocable trust, and which needs do they serve?

The ability to change is at the heart of the difference between revocable and irrevocable trusts. Revocable trusts take their name from the trustee’s ability to “revoke” (i.e. change) provisions of the trust agreement after signing. These changes could include adding or removing beneficiaries of the trust by amendment or even dissolving the entire trust. Unless a successor trustee is named in the trust agreement, a revocable trust becomes irrevocable upon the death of the person or persons who formed it.

Revocable trusts can be an important tool in estate planning. Like a will, they offer a flexible option in assigning responsibilities and dividing property after one’s death. Unlike a will, however, revocable trusts do not need to be submitted to probate and will remain private. The value and division of one’s estate will not be known and thus not become a source of public speculation or possible family conflict.

Additionally, through the appointment of a successor trustee and a disability clause, a revocable trust can be used to transfer one’s property during life if one should develop dementia or another condition that prevents management of the estate.

Irrevocable trusts, by analogy, cannot be changed after signing; there is no going back on decisions made or property assigned. Irrevocable trusts are more often used near the end of life to assign one’s property to another, thus avoiding estate taxes.

Call our office today to discuss which trust or other financial instrument best suits your estate-planning needs.

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

How do courts determine if relocation of a child to another state during a divorce is acceptable?

In situations where a custodial parent wishes to relocate with a child, the court will determine whether child custody relocation is in the best interests of the child. While a parent is free to relocate out of state themselves without the child or with the permission of the other parent to take the child, the state of Massachusetts requires a judge ruling regarding relocation contested by a parent.

Depending on the current custody agreement, the judge has two different processes for determining if relocation is in the child’s best interest. For joint or shared custody the judge will take into account the following:

  • Whether or not the quality of the child’s life will be improved and if the child will endure similar benefits as the parent from the move.
  • Adverse effects of altering visitation schedule and the extent to which the child’s relationship to the non-moving parent will be compromised.
  • How the child’s emotional, physical, or developmental needs will be impacted by moving or not moving.
  • If there is a way to create a new visitation order to allow the non-relocating parent to maintain a close and enduring bond with the child.

In the event a parent with primary custody is requesting relocation, the judge will apply what is known as the “real advantage” standard as the child’s well-being is more closely intertwined with the parent’s welfare in these situations. In this case, the judge will examine evidence of economic benefits, availability of extended family, and the desire to relocate with a new spouse. Additionally, the factors mentioned above will also be used to determine if the move is in the child’s best interest.