Mind Your Manners: Celebrating Thanksgiving During a Divorce

Thanksgiving week is typically chock-full of family-oriented activities as the holiday season “kicks off”.  It can, however, be a real challenge for people who are going through divorce or post-divorce legal issues involving their family.

The ideal of a happy family coming together in a loving celebration can clash harshly with the reality of family court litigation which compounds anxiety during a demanding holiday season.   How then does one get through Thanksgiving – the “make it home to your family” holiday – when your family is being ripped apart by looming family court proceedings?

1.  Bite Your Tongue at the Thanksgiving Table

As cliché as it may be, “If you don’t have anything nice to say, don’t say anything at all” should be your rule of thumb.  The holidays are notorious for being prime times for family arguments and Thanksgiving is no exception.  While this year is likely to be more nasty than usual given the hotly contested presidential election, it can get even worse when two people cannot find anything nice to say about one another in front of their children.  If you feel like you just can’t contain your negative feelings or are having trouble fighting the urge to “fire back”, excuse yourself from the table and go call a friend or talk to a trusted family member in private so you can vent your anger and frustrations where third parties are not going to hear it.  Remember, your mouth doesn’t have a backspace key and once harsh words are said they can’t be taken back.

2.  Just Because Your Ex is a Turkey Doesn’t Mean You Should Act Like One Too

Actions speak louder than words.  Avoid the temptation to engage in petty behavior and regress into your adolescent self.  If your ex tries to re-arrange the parenting schedule, drops the kids off late or engages in some other type of bad behavior to affect your holiday, remember that no good has ever come from repaying one bad turn with another.  The reality is that things are not always going to go as planned and you can’t control how other people behave.  Also, bear in mind that your children are observing how you and your ex act and your relationship with them may likely be affected based on how you treat the other parent.  If the other parent is exhibiting negative conduct, your best course of action is to simply keep your side of the street clean by not retaliating.  He or she will  reap what they sow in later life.

3.  Pass on Side Dishes of Guilt and Anxiety

If you’ve made past mistakes and feel like you’ve got more regret than you know what to do with, you’re not alone.  Guilt and anxiety are complex emotions which frequently go hand-in-hand in stressful family and divorce situations around the holiday season. For many people, therapy is an extremely helpful tool to help process these difficult feelings, but there are other ways to deal with feelings of guilt and anxiety as well. Getting to the root of your feelings of guilt and anxiety is the first step in starting to heal from these painful emotions. Acknowledging that it is normal to have these emotional experiences during a divorce can help dealing with them as well.  If an apology to your children or to your ex is an order, don’t be reluctant to make it. It is never too late to make amends and a sincere apology to others can help you forgive yourself. Remember that your divorce experience doesn’t define who you are as a person and you can always move forward once the dust has settled.

4. Be Generous and Appreciative

Thanksgiving is an Action Word — so be purposeful this holiday and give thanks!  It is natural during the trials and tribulations of life to focus on what we don’t have and focus on the negative aspects of our own situations instead of celebrating what we do have and what is going well.  When you find your thinking reverting back to negative patterns, learn to live in the moment. Enjoy the company of family members around you this Thanksgiving instead of focusing on those who elicit feelings of stress, guilt and anxiety. Do not think of upcoming court dates or the appointment next week with your attorney.  Control your thoughts by immersing yourself with motivational quotes and inspirational thoughts and remembering your blessings. If you resist the urge to compare yourself with others and give more generously of your time and resources instead, you are likely to become more appreciative of what you have this holiday season more able to enjoy the time with friends and family.

The Advantages of Collaborative vs. Litigated Divorce in Massachusetts

 

Considering a divorce can be daunting enough without having to decide which type of divorce you need to pursue.  The good news is that you have options and can choose a type that best suits your needs, individual set of circumstances, and legal interests. Two main types of divorce in Massachusetts are collaborative and litigated. Collaborative consists of a non-litigated, non-traditional approach, whereas a litigated divorce is more traditional and handled through the court system. Although the law is the same, collaborative divorce differs significantly from traditional divorce so it is important to understand the differences.  Choosing to handle your divorce in a collaborative manner can be a beneficial option for many reasons, including saving time, stress and money.  With this in mind, consider the following benefits of pursuing a collaborative approach to your divorce.

How Collaborative Divorces Are Handled

The greatest achievements come when people work together.

While a litigated divorce is usually combative in nature, a collaborative divorce encourages mutual agreements without the threat and pressure of litigation. A collaborative divorce is handled outside of the court system in an effort to satisfy both parties with an outcome that is satisfactory through mutual agreement. Collaborative attorneys are professionals who are specifically trained to assist couples in efficiently working through difficult yet necessary decision-making to arrive at resolutions that make sense for all involved.  Jointly retained experts will join the collective efforts and are hired to work for both parties to alleviate the “battle of experts” that a litigated divorce can create. Unlike a mediated divorce, a collaborative divorce provides each party with representation. However, all parties and their attorneys gather in an effort of creating solutions at private negotiation meetings.

 Benefits of a Collaborative Divorce in Massachusetts

The advantages of collaborative divorce can be substantial for clients. The court system in Massachusetts is under-funded and considerably backed up.  This is particularly true in Middlesex County.  Parties can wait weeks, and in some cases months, to get a court date.  The goals of conducting a collaborative divorce strive to keep parties out of court and to handle all negotiations privately in order to reach a mutual settlement without court involvement.

At its nature, a collaborative divorce seeks to find solutions to the complicated issues that can arise during a divorce while protecting the needs and wishes of both parties collectively. Removing the combative nature and “warfare” of a litigated divorce encourages parties to maintain amicable relationships, which can be especially important if children are involved. Attorneys can also conduct negotiation conversations without the presence of the parties and provide a summary of possible agreements, if desirable. Couples that own a business together may also reap the benefits of a collaborative approach because a variety of aspects can be agreed upon that affect a couple’s life during a divorce. A negotiated approach can also result in spending fewer resources and less time on achieving a divorce than one that is represented and litigated.

Many divorce attorneys, frustrated by the traditional representation system, have redefined their practice of law in favor of a collaborative approach. For divorcing couples who wish to dissolve their marriage using a less adversarial and more results-based approach, the collaborative method is an appealing alternative over a litigated divorce. The wealth of benefits a collaborative divorce offers, in terms of resources and time, will benefit divorcing couples by helping them maintain an amicable relationship during the divorce process and in years to come.

Coverture in the Commonwealth

Coverture is a method of equitable property division used by courts in Massachusetts. It is frequently employed to determine the value of non-vested marital property that is subject to division under M.G.L.A. c. 208, § 34. The coverture time period refers to the period of time during which the value of the non-vested property of one spouse is attributable to the marriage. It is typically used by courts and lawyers to determine the value of such non-vested property as pensions and employee stock options. Coverture has its roots in the colonial period of the United States, when married women and their husbands were considered a single entity for most legal purposes and women were not permitted to own or transfer property. Although the law has evolved significantly since the concept of coverture was conceived, the term as it exists today refers only to the fractional method by which courts determine the value of non-vested marital property.

Coverture, as it was applied in the 19^th century, was a defense that married women could raise to a number of legal actions against them. Since the common law held that married women could not own or transfer property, those who dared to contract with married women did so at their own peril. In 1865, a plaintiff suing a married woman for the enforcement of promissory notes made by her was defeated after she successfully raised the defense of coverture on appeal. Tracy v. Keith, 93 Mass. 214, (1865). Married women could even raise the defense of coverture against the Commonwealth in a criminal case. Com. v. Feeney, 95 Mass. 560, (1866). In modern times, coverture applies only in family law cases.

Modern family courts apply the legal concept of coverture where one spouse has been earning some type of non-vested property interest throughout the marriage and will likely receive the benefit post-divorce. The most common scenario is when one spouse is a pension holder and has been participating in the pension plan throughout the marriage and continues to participate in the plan after divorce. The non-pension holder spouse is entitled to a portion of the future pension payments in proportion to the amount of time he or she was married to the pension holder. The coverture period is determined by a fraction where the numerator represents the total period of time the pension holder participated in the plan during the marriage, and the denominator is the total period of time the pension holder participated in the plan. Dewan v. Dewan, 17 Mass. App. Ct. 97, 455 N.E.2d 1236, (1983). The determination whether to assign a percentage of present value as a property asset or to allocate benefits if and when received lies largely within the discretion of the judge. Dewan v. Dewan, 17 Mass. App. Ct. 97, 101–02, 455 N.E.2d 1236, 1240 (1983). In Dewan, the wife argued the judge was required to accept the actuary’s testimony as to the value of the pension rights and to allocate a portion of that value presently to the wife by way of equitable division. The court stated that assigning a present value is more desirable in shorter marriages as the pension has little present value due to “long deferred receipt and because the non-retiring spouse’s appropriate share of pension benefits when paid would be confined by the brevity of the marriage” Dewan v. Dewan, 17 Mass. App. Ct. 97, 102, 455 N.E.2d 1236, 1240 (1983). For longer marriages, where the age of retirement is closer, assigning a present value may not be feasible in the absence of other significant assets.

Massachusetts courts have applied a similar time-based method in determining the portion of stock options owned by a spouse that may be included in the marital property. Stock options, like pension plans, are non-vested property rights so the courts apply a fraction method in order to allocate the value of the stock options between spouses. “The number of unvested shares of stock options is multiplied by a fraction whose numerator represents the length of time that the employee owned the options prior to dissolution of the marriage (i.e., the length of time that the employee owned the options prior to and during the marriage), and whose denominator represents the time between the date the options were issued and the date on which they are scheduled to vest. The resulting product is the number of shares subject to division.” Baccanti v. Morton, 434 Mass. 787, 801, 752 N.E.2d 718, 730 (2001). The judge then applies the normal G.L. c. 208, § 34 factors to assign those shares subject to division. In this way, courts have applied the coverture theory to both retirement plans and employee stock options.

The early applications of coverture were based on the idea that women, because of their inherent inferiority, could not own property and thus the husband was required to be the sole provider. While the legal principal of coverture has evolved over the years, the duty of one spouse to provide for the other after separation remains. The extent of that duty regarding non-vested property rights is sometimes determined by the time-based method known as coverture.

Could My Jailbird Ex be Entitled to Alimony While in Prison?

This is a question that doesn’t often surface, but when it does is significant, to say the least.  One key function of the Probate and Family it to determine the proper amount of alimony that should be awarded to a dependent spouse in a divorce proceeding. While the judge follows the statutory guidelines set forth in M.G.L.A ch. 208, § 34 in calculating an alimony order, each case is different and presents unique challenges. One such challenge of divorce presents itself when the dependent spouse becomes incarcerated after the judgment of divorce that contains an alimony order has entered.  Although a dependent spouse sentenced to jail is still entitled to receive alimony payments pursuant to the domestic relations order, an argument could be made that the incarceration constitutes a material change in circumstances and the judgment for alimony should be terminated.

The focus of an award of alimony should be the spouse’s need for support and maintenance as it relates to the parties’ individual financial circumstances.   To be successful in an action to modify a judgment for alimony the petitioner must demonstrate a material change of circumstances since the entry of the earlier judgment. Schuler v. Schuler, 382 Mass. 366, 368, 416 N.E.2d 197, 200 (1981).   While the financial needs of the parties, along with a number of other factors, play a major role in determining the amount of alimony to be paid to the dependent spouse, it follows that when the needs of the dependent spouse have reasonably increased, the judgment for alimony may be modified accordingly to increase the amount of alimony to be paid in support of that spouse. The opposite is also true. The financial needs a dependent spouse who becomes incarcerated  will decrease significantly since the burden of support is absorbed by the state.   In addition, because the recipient spouse’s standard of living is determined entirely by the Department of Corrections and therefore no amount of payment to the incarcerated spouse can provide sufficient economic support to maintain the marital lifestyle.

As unpleasant as in might seem, an incarcerated ex-spouse could be entitled to receive alimony while in jail, or even to increase the amount of payments.  As a result of incarceration, the dependent spouse’s financial needs will likely increase and alimony payments may be ordered to continue accordingly. The court considers the following factors in determining alimony: the length of the marriage; age of the parties; health of the parties; income, employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution of both parties to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court considers relevant and material. M.G.L.A ch. 208, § 53.

When a dependent spouse has been incarcerated, future employability is almost always negatively impacted as a result of the criminal conviction.  Upon release a dependent spouse may struggle to find a job and may have community service and parole obligations to meet as well. A spouse is entitled to a fair and reasonable award considering his and her needs, his and her financial worth, their station in life, and his or her mode of living. Because an incarcerated spouse may not be able to secure gainful employment and maintain a lifestyle comparable to that of the marital lifestyle, the dependent spouse may need alimony even more than before the incarceration.   While the incarcerated dependent spouse may not be able to spend money received from alimony payments while in jail, the money may be transferred to the spouse’s bank account, to be used for shelter, food and other support purposes upon release from jail.

The question of whether an incarcerated spouse should receive alimony while in jail is an important one, but not often considered.  Many if not most people may consider an award of alimony to a newly released inmate unfair, and a payor spouse would likely argue that any hardship suffered by the dependent inmate was self imposed by their illegal conduct.   Nonetheless, a spouse being sentenced to jail is just one of the many possible situations in which a material change in circumstances may justify a modification of a judgment for alimony, and Massachusetts Family and Probate Court Judges have considerable discretion when making such orders.  Legal counsel should always be sought on a case by case basis.

Is Your Inheritance Up For Grabs in a Divorce?

In Massachusetts divorce cases, expected future property acquisitions in the form of inheritances or family trusts may be taken into consideration by the Court when dividing marital property.  The law has been very well settled that “Opportunities for future acquisition of capital assets and income” are one of the factors the Court should take into consideration as under M.G.L. Ch. 208, §34.

During the divorce process, each party seeks to obtain from the other evidence of financial assets so that the Court properly takes them into consideration when determining the division of marital property. A party in a divorce case will want evidence of the other parties future interests (i.e. money or property), which may take the form of future inheritances. The private nature of these possible future interests raise a problem for parties in a divorce which is not easily dealt with without use of a common discovery tool known as the “Vaughan Affidavit.”

In order to establish a balance between the privacy interest of third parties and the right of a divorcing spouse to the full disclosure of marital assets, in 1991 the Court in Vaughn v. Vaughn held that third parties have legitimate privacy interests that need to be protected while acknowledging that the Court may properly take a party’s expectancy interests into consideration when determining what disposition to make of the marital property that is subject to division. The result was the so-called Vaughan affidavit.

The Vaughan affidavit is a document supplied by the third party (usually the parents or grandparents of a divorcing spouse) in a divorce proceeding, that provides limited disclosure of the individuals financial assets, net worth, and a general description of their estate plan. The affidavit is supplied in lieu of deposing the third party.  If the third parties reside in Massachusetts, they will in all likelihood confer with their own counsel once they receive the subpoena to get legal advice.  Upon doing so, they will understand that they may choose to either produce the documents and/or appear for the deposition, or execute the Vaughan affidavit.  When presented with these options, they will almost always choose the latter, less intrusive alternative.

The Vaughan affidavit is an important tool for lawyers practicing family law, but judges are entitled to a substantial amount of discretion when taking it into consideration. Parties in a divorce action have a right to know about substantial expectancy interests of the opposing party but the Court is mindful that a person could be dis-inherited or divested of any such interests at the sole discretion of a third party.  Nonetheless, the importance of obtaining a Vaughan affidavit in a divorce action cannot be overstated where one party suspects the other of having a substantial inheritance coming their way. Taking a future interest into consideration can make a significant difference when calculating divisible marital assets and should not be overlooked.

 

The Miranda Warning: More Than Words 50th Anniversary Law Day Commemoration

“You have a right to remain silent….”.  These words have become so well-known in our culture today that most Americans can recite them by heart.

Despite the familiarity of the words, many people are not aware that this year marks the 50th anniversary of the 1966 landmark decision Miranda v. Arizona decision, in which the U.S. Supreme Court overturned the conviction of Ernesto Miranda on kidnapping and rape charges of a 17 year old girl because he was not informed of his rights during his arrest, making his written and signed confession null and void.  In this landmark decision, the court set forth specific guidelines which law enforcement officers must follow when interrogating suspects during a criminal investigation. The court essentially ruled that in order for statements made by a suspect during custodial interrogation to be admissible at trial, police must have advised the suspect before the interrogation began their constitutional rights which guarantee that no citizen can be compelled by the government to incriminate himself/herself, and that a citizen in a criminal proceeding is entitled to the effective assistance of counsel.

Although the court did not mandate specific language for implementation, district attorneys in California penned the first draft of rights during the summer of 1966 which ultimately resulted in the creation of the  familiar cadence of the Miranda Warning which is now recited to suspects by law enforcement officials.  The effect was amplified when television producer and actor Jack Webb decided to fold the Miranda rule into the 1967 revival of the television series Dragnet.  This  practice quickly spilled over into other popular television police dramas in the years the followed.

Each year May 1st is Law Day, the date designated by Congress in 1958 for Americans to celebrate the many benefits we derive from living in a society governed by the rule of law. In celebration of Law Day 2016, the Middlesex County Bar Association joined in the national commemoration of the golden jubilee of the Miranda decision in its annual law day program which recognizes and awards high school students in Middlesex County who exhibit the qualities and characteristics of good citizens and are active in civic engagement.

The ceremony was held on May 5th at the Middlesex County Superior Court in Woburn and welcomed distinguished guests Middlesex County District Attorney Marian T. Riley,  Middlesex County Sherriff Peter J. Koutoujian, and Middlesex County Bar President Damien Gilletti.  In total,13 high school students were recognized for their commitment to community service, excellence in achievement, and civic involvement.  In addition to citizenship award presentations, several scholarships including the Honorable Francis P. Cullen Memorial Scholarship and the Karen Lombard Memorial Scholarship were awarded as well.

Our liberty, fundamental freedoms, and privileges we enjoy as Americans are firmly rooted in the Constitution and our commitment to good governance under the rule of law. The Middlesex County Bar Association strongly encourages all citizens to familiarize themselves with the form and structure of our governmental institutions, and take advantage of the many ways in which they can exercise their freedoms to ensure that those governmental institutions operate most effectively for our collective benefit.

The Consequences of Lying to Your Lawyer

Lying is never a good idea, but the last person you should lie to is your lawyer. No matter what the rationale may be, honesty is always the best policy when it comes to dealing with an attorney who you’ve either consulted with or retained to represent you.

Not being truthful with your lawyer may not just cost you some embarrassment, it could cost you the outcome of your lawsuit. 

Client Confidentiality – A Relationship Predicated on Trust

One of the founding principles of the American legal system is confidentiality in the communications between a lawyer and his or her client. The attorney-client privilege protects confidential communications between a client or prospective client and an attorney made for the primary purpose of obtaining legal advice or assistance. Except in a few limited circumstances, the attorney cannot reveal these confidential communications to a third party or in the course of any legal proceeding. This principle of confidentiality is based on the idea that an attorney needs to know all the facts of a client’s case, favorable and unfavorable, in order to effectively advocate for the client and achieve his or her goals. With this principle in mind, lawyers strongly encourage their clients to be candid with them about the details of their case, no matter how embarrassing or unpleasant.  In fact, if a client is not truthful with their advocate, it can be grounds for an attorney to withdraw from representation of that person altogether.  Nevertheless,   some clients misrepresent or omit important facts and details they feel might hurt their case despite warnings not to do so. Because all communications between the client and the attorney regarding the client’s case are held in confidence,  lying will not only reduce the odds of achieving the client’s goals and adversely affect the client’s case, but will cause the attorney to have strong misgivings about the client.

Judges Judge – The Attorney Advocates and Defends

An attorney’s job is to advocate and defend, not judge.  When people seek legal assistance, especially for family law matters such as divorce, the attorney must many personal questions during the intake process. Clients are sometimes reluctant to disclose facts they view as unfavorable out of fear that the lawyer may judge them for their actions and not accept them as a client. They may also withhold certain unpleasant details that they believe the lawyer doesn’t need to know or they think are irrelevant to the case.  Be mindful that lawyers handle cases involving indiscretions such as adultery, drug use, abuse, and other offensive activity on a regular basis and there is unlikely anything that will shock an experienced lawyer. Most attorneys are compassionate and will empathize with a sensitive and difficult situation. It is never an attorney’s intention to embarrass or make a person uncomfortable, but in order to do his or her job, an attorney know all of the adverse facts in order to effectively strategize and plan.  In fact, an experienced lawyer may know how to put a positive spin on even the worst possible set of circumstances.  It is always better to err on the side of caution, and be completely forthcoming with an attorney, so that they can effectively advocate for the client.

The Adverse Effects – Irreparable Damage

Clients who lie to their lawyers are subjecting themselves to a lose-lose scenario. The truth almost always has a way of coming out – in one form or another.  If adverse facts aren’t revealed up front and dealt with, it is likely that they will surface at a later stage of litigation and be used against the client by the opposing party.  In many cases, it can have devastating consequences for both the client and the lawyer.  The worst case scenario for the client is when a lie is exposed during the client’s testimony while under oath.  More likely than not, it will come out under cross-examination while credibility is under attack.

Attorneys also may also undergo scrutiny when clients are not truthful and sustain damage to their reputations.  Attorneys are officers of the court and subscribe to the Rules of Professional Conduct which prohibit them from assisting client in perpetuating a fraud (making misrepresentations) to the Court.  If a client is caught in a lie, it may also call the actions of the lawyer into question, and may cause the attorney to appear in a bad light before the Court.  If this happens, an attorney may seek to withdraw from the case in order to protect his or her reputation.

It is clear that clients gain nothing by lying to their lawyers. The best thing clients can do for themselves is be forthcoming in all their communications with their attorney and avoid the chances of an unfavorable outcome.  Because private conversations with attorneys are almost always treated as confidential, it is better to talk about unpleasant facts early with them early on rather than to be caught off guard later. Candor isn’t just important; it is the cornerstone of the attorney-client relationship.  Without mutual trust between the lawyer and client, both are at a disadvantage.

 

Self-Care Following a Car Accident

 

Car accidents are no joke…especially when someone is injured.  Motor vehicles are usually damaged if not completely wrecked, and victims are faced with the conundrum of lost time from work and loss of transportation.  Combine these problems with  personal injuries and other family obligations and it is a recipe for a perfect storm.   In today’s world it’s hard enough to carve out the few minutes necessary for people to take care of themselves, but following a car accident people quickly discover how important self-care truly is.

Why Self-Care is so Important

If police and emergency personnel are dispatched to the scene, the accident is likely serious.  Victims are often taken by ambulance to the nearest emergency room or urgent care clinic for immediate treatment.  Most accidents are not this severe and usually fall under the category of “fender benders.”   In these types of cases, no police or ambulance are summonsed if there are no apparent personal injuries and the property damage is relatively minor.  Even in minor crashes there can be chaos and confusion.   Victims frequently  forget about themselves – especially if there are children.  Because many accident victims report no immediate pain following this type of crash, they exchange information but often do not want to bother with the expense or inconvenience of medical treatment right away.

Victims need to listen to their bodies and follow intuition.  While a victim may not immediately feel pain or exhibit any other symptoms, they may nonetheless be seriously injured, even if the impact from the crash was at low speed.   From a practical and a legal standpoint, seeking medical care following an accident is always a good idea.  Massachusetts is a “no-fault” state, which means all motorists are required to carry Personal Injury Protection (PIP) as part of their automobile insurance coverage.  A PIP-compliant policy must offer at least $2,000 in coverage for medical expenses and lost wages, and victims are often very relieved to know that these expenses will be covered.

Can Self-Care Wait?

Many people erroneously believe that they can take care of others while neglecting themselves.  This is  a fallacy.  Neglecting one’s own needs will only be detrimental to those who depend on them.  Moreover, waiting too long to seek medical care after an accident may result in the insurance company denying the claim.  The injured party must show that the injuries  were causally related to the crash and permitting a large window of time to go by without medical care may be detrimental to a claim.  Many people just assume that pain will subside with time and rest, but this is often not the case.  Using this rationale may allow the insurance company to use this gap in treatment to later argue that the injury was caused by something other than the accident or that the accident wasn’t that serious.

Resolve to Practice Self-Care and Follow Through

Insurance claims aside, self-care is something that is often overlooked and disregarded in today’s society.  Thinking about how to handle the matter and over-analyzing the situation will only make matters worse.  It is okay if the answers aren’t apparent.  Say no to the commitments that are going to unnecessarily add responsibility during the days following a crash.  This is a time to focus on yourself, get the care needed, and consult with an experienced personal injury attorney to evaluate options.

Massachusetts Legal Community Responds to Opioid Addiction Epidemic

The opioid painkiller addiction epidemic in Massachusetts continues to rise despite the media and press attention it has received in recent months.  According to the Massachusetts Department of Public Health, opiod-related overdose death reported between 2012 and 2014 existed in 263 of out of 351 of the state’s municipalities, or about 75%.  Sadly, statewide, 1,089 people, (or 16.5 per 100,000), were killed by opioids in 2014.

Because of the euphoric side effects and associated withdrawal symptoms, these drugs have become increasingly sought after and are frequently sold by prescription holders to third parties.  Compounding this problem is the likelihood of “drug tolerance” which almost always results in the person needing to take higher doses of the opioid in order to achieve the same initial effect. Finally, opioid painkillers have been established to be the biggest risk factor in ultimately causing a heroin addiction.

Massachusetts Lawyers have stepped up the plate to help combat the substance abuse addition in the Commonwealth.

Although  initially used to treat acute, short-lasting pain from injury and longer-lasting pain from cancer, these medicines have been increasingly prescribed to treat chronic pain conditions, like arthritis, over the past 20 years.  In fact, four times as many prescription opioids were prescribed in 2015 in the United States than were prescribed in an average year in the 1990s.

Health officials are working to educate health care providers on safe prescribing, and are educating the public about the risks of opioid painkillers, but the legal community has also begun to play a role in fighting substance abuse.

The Massachusetts Bar Association launched a free legal assistance pilot program in Norfolk county to help residents who are seeking court-ordered inpatient treatment for a friend or family member that is struggling with opiod or other substance addictions.  If successful, the program may also be adopted by Middlesex County in the coming months.

Specifically, the program offers individuals help with Mass Gen. Laws Ch. 123 Section 35, more commonly known as “Section 35” which allows individuals to ask the courts to involuntarily commit substance abusers to an inpatient treatment facility if the abuse puts themselves or others in danger. Once “sectioned”, an abuser can be sent to a treatment program for up to 90 days if a judge determines, following an evidentiary hearing, that there is a likelihood of serious harm to themselves or to others.  The program is the first of it’s kind in Massachusetts and will be coordinated by a toll-free helpline.  The program and will be staffed by volunteer attorneys who will assist petitioners with drafting their “Section 35” petitions.  The attorneys may also make pro bono court appearances when deemend necessary.

“Having a loved one ‘sectioned’ and forced into treatment is not an easy thing to do and often is viewed as a last resort to save someone’s life.  No one should have to go through this alone, ” stated Massachusetts Bar Association President Robert W. Harnais, who created the program.  “Our helpline ensures that for the first time, the people closest to the devastation cause by opioid addiction – the addict’s friends and family members – have the support and legal help they need to navigate this powerful process.”

More information concerning this initiative can be found on the Massachusetts Bar Association Website http://www.massbar.org/norfolkhelpline.

Massachusetts Restraining Orders and Harassment Protection Orders – What You Need to Know

A restraining order under M.G.L. 209A is a civil order issued by the court that prohibits a person from being within a set proximity or making contact with the person who filed the restraining order.  A harassment prevention order under M.G.L. 258E  also provides these same protections from harassment and abuse.  This following is a list of a few tips that will help prepare you for what you can expect when you are at these types of hearings.

1. Be Able to Clearly Identify an Imminent Threat of Harm

When you request a restraining order, you are asking the judge to restrict another person’s freedom, which is not something the court takes lightly. Remember that the law does give the judge the authority to restrict someone’s freedom only when there is violence or harm, or the imminent threat of violence or harm.  The law does not give a  judge the authority to restrict someone’s freedom because that person lies, swears, drinks, squanders money, etc.  Even if the other person’s bad behavior may be a big part of the abuse, it is not likely to be a basis for a judge to grant a restraining order unless you can show it caused you to be reasonably fearful for your personal safety.  Focus on the acts of violence which gave rise to your request for the restraining order you are seeking and the court will be more likely to grant your request.

2. Give careful thought to your restraining order statement before you write it down

The sworn statement (also called a supporting affidavit) you write in your application for a restraining order is a summary of your case against your abuser and should be well thought out. It is an official declaration to the court that is made under the pains and penalties of perjury, and should concisely set forth each and every act that caused you fear.  The supporting affidavit is a permanent part of the court record, and it is important to remember that it may be brought into any future court proceedings, either to support your case, or to be used against you.   If the affidavit is weak or poorly written, it will be easier to attack the request for the restraining order and discredit you.  Also keep in mind that if the history of abuse is very lengthy and complex, you do not have to cover every single event that transpired in the supporting affidavit.  Like most things, less is more when you are presenting to the court. However, special care should be taken to make sure that critical points do not get left out and the timeline of events is clear.  If material issues are left out, or the summary of your allegations veers off into irrelevant matters, you may confuse the court and make it difficult to raise important matters later in the case.

3. Track down your witnesses

A temporary restraining order (TRO) is normally issued on an emergency basis with the court relying on the alleged facts contained only in the supporting affidavit.  If a TRO is granted, the court will schedule the matter for hearing within 10 days so that the defendant can be present and give his or her side of the story.   A restraining order hearing works like any other trial, and the testimony is subject to the rules of evidence.   If you have witnesses who can verify your accusations, it adds tremendous credibility to your case.   If your witnesses are not willing to testify at the hearing,  ask them to write a witness statement for you which you can present at the hearing.  Ideally, it should be signed by your witness under the pains and penalties of perjury and notarized.  The defendant will likely object to any signed statement, but it is well worth getting if your witness cannot appear for the hearing.

4. Control your emotions in front of the Judge

Dramatic displays of emotionalism at a restraining order hearing are never a good idea. When your case is called, there will likely be a substantial amount of people in the courtroom present waiting to be heard on other matters.  Although the judge will be concentrating on your testimony, you need to be mindful that there might be total strangers listening as well.  As nerve wracking as the situation may be for you, avoid telling long, dramatic stories. If you feel like seeing your abuser in court will make you upset, come prepared with a supportive friend or family member.  It is also a good idea to bring a few tissues with you so that you are not caught off guard if you feel like you might lament.  Resist the urge to panic, and stay calm by taking deep breaths, and focus on the judge and avoid looking at the defendant.  Respond directly to the question being asked, and keep your answers clear and concise.