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.

 

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.

How to Take the Fight out of Divorce

Inability to effectively communicate and negative emotions can prevent resolution of minor issues between divorcing spouses.

When facing divorce, the last thing any family needs is arguing and confrontation.  Just because two people fall out of love,  doesn’t mean they should try to hurt one another emotionally and financially. Divorces can be overwhelming, and are the cause of significant fear and anxiety for a lot of people.  What many people don’t realize is that “this doesn’t have to be the case.”  The best outcomes in divorce situations is when both parties put their personal feelings aside and view it as a business negotiation.  In fact,  data from the Project on Negotiation at Harvard Law School substantiates this position concluding that “good decisions are not made when there are negative emotions or fear.’

Many people have heard the term “mediation” and may loosely understand what it means, but don’t have a firm handle on what it can do for them in the context of divorce situation.  In Mediation, both  spouses come together,  for a few sessions, and use interest based negotiations to help them reach agreements on child custody, support and division of assets. After the agreement is reached, the mediator will typically draft a separation agreement. The mediator does not represent either party, and does not give legal advice. The function of the mediator is to assist parties in communicating, and to help them in forming their own resolutions to the issues that they have difficulty with.  Mediation can preserve a family’s financial resources, and may accomplish the divorce process in  less time and with less stress.

It is important to remember that not all divorcing spouses are going to be candidates for mediation.  If one person is using the mediation process in order to “strong arm” the  less-aggressive spouse into complying with his or her wants or wishes, this will be a waste of time.  Most mediators can see right through this and will end the sessions  if it becomes unproductive.  There are also no guarantees that a mediation can fast-track a divorce.  If the process breaks down at any point,  people may find themselves quickly lawyering up.

If a mediation breaks down, it doesn’t necessarily mean a divorce is headed straight to trial.  In Massachusetts, (and in a majority of states) most divorces have great potential to settle out of court simply because litigation is expensive and trials can be very time consuming and unpleasant.  In Massachusetts, several of the county bar associations offer conciliation programs which have assisted the courts greatly in resolving contentious cases that would otherwise go to trial.  These programs are staffed by volunteer family law attorneys who are trained and experienced.  They also function as third-party neutrals, so the process tends to move much faster and is more directed than a mediation. A conciliator can make helpful suggestions on how to resolve a case and may also write a report to the court on what options were discussed as part of the process.  Sometimes a session is broken down by dividing up into small groups so that each party feels as though they can speak freely if a case is especially contentious.  The success rate of conciliation is remarkable in Massachusetts.  Roughly 70% of the cases that are referred by the family court for conciliation are resolved and reported as settled.

Managing conflict is never easy, but it doesn’t have to be impossible.  A good mediator is open and understanding about different ideas, perspectives and experiences and has creative solutions that take each of them into consideration.  Taking the fight out of divorce spares couples time, money and anguish and is well worth the investment.

 

New Years: A Fresh Start for Old Habits?

The new year is the perfect time for a lot of people to super-charge their self-improvement plan by getting motivated, focused and organized.  People tend to view the start of a new year as a 365 page book that has yet to be written.  Each day represents a blank page that has all the narration potential that optimism and hard work can pen – the decision is ours.

When you consider how many if not most people over-eat, over-spend and over-indulge over the course of the holiday season, it should come as no surprise that by the time the new year arrives, people are craving structure, self-discipline and relief from the guilt that follows many of these excesses.  It is not uncommon for people to file for divorce, start a new career or relocate as part of a new years strategy to self-improve. However, more often than not resolutions involve belly-fat and biceps and are frequently made at the last minute as the year draws to a close.

Why then, do new years resolutions have seem so difficult to maintain for most people? Although almost half of all Americans make some kind of New Years resolution, according to U.S. News and Word Report, 80% of all new years resolutions fail.  Focusing on how you should approach your new years resolutions can help you resolve not to let old habits get a fresh start in the new year.

Mind Over Matter

After you’ve given yourself a pep talk about the importance of goal-setting and self-care, it is your responsibility to make sure you maintain a positive mind set as you start to go through the new year.  There are going to be days when you feel discouraged and may lack the resolve to follow through.  While will power is important, it will fail you if you entertain negative thoughts and begin to reason away your resolve.  If you have a bad day and fail at some of your goals, forgive yourself and don’t let yesterday’s failure interfere with tomorrow’s successes.  Be focused on your everyday behavior and don’t push too far ahead into tomorrow.  To that end, you will be better able to enjoy today for what it is and appreciate small successes.

Do you remember your resolutions from one short year ago?  Small incremental resolutions are the best for success, but even still require constant daily dedication. 

Keep it Realistic

When it comes to setting your resolutions, make sure you make them reasonable and attainable. It’s also important not to deal in absolutes.  Let’s face it – you aren’t going to be speaking fluent Swahili,  playing a french horn concerto, or losing large quantities of body fay within a month’s time.  Also, if you resolve to go to the gym 6 days a week as opposed to simply adopting a healthier lifestyle or losing weight, you are going to be setting yourself up for failure.  What happens if you get the flu and can’t make it in for 7 days?  Recognize your own boundaries and keep your goals reachable in the context of your life.  Set a well thought out plan for your goals that you know you are going to be able to follow.

Get Advice – Good Advice

While it can be beneficial to seek out the advice of close friends and family, be wary of jumping on the bandwagon of self-help gurus who don’t know you, aren’t familiar with your lifestyle, and may not offer good wisdom and judgment.  Researcher and psychologist Richard Wiseman found that many of these ideas that are frequently recommended by self-help experts simply don’t work based on the results of his study on new years resolutions.  “If you are trying to lose weight, it’s not enough to stick a picture of a model on your fridge or fantasize about being slimmer.” Wiseman said.

Check Your Motives

What is the driving force behind your resolutions?  Is guilt or shame?  How about fear or insecurity?  If so, it’s best to take a step back and evaluate your mind set and how you actually view yourself.  It is a well-settled fact that negative emotions are poor fuel to launch a campaign for self-improvement.  Harvard Business School Researcher Amy Cuddy told the Business Insider that (people) “tend to focus on things they want to change about themselves and things they dislike about themselves,”  she went onto explain that when a person does this “you’re eliciting in yourself negative emotions. Some negative emotions are motivating, but for the most part, they’re not.” If you say, “I’m going to stop eating junk food,” to use an example, you’re denigrating yourself before even getting started. You’re better off framing your goal as “eating healthier” so that you’ll remain motivated and optimistic.

Ellen Anna Wright is a senior attorney at Wright Family Law Group in Tewksbury, Massachusetts focusing her practice on Family Law, Personal Injury and Bankruptcy.

 

 

 

 

 

Holiday Season Car Accidents: Be Prepared

Accident statistics during the holidays suggest that the holiday season can be a particularly dangerous time to travel when it comes to fatal motor vehicle accidents. If you or a loved one have holiday travel plans, be cognizant of the hazards that are unique to this time of year.

In a season that is supposed to be merry and bright, there is an increased risk of car accidents on Massachusetts roadways.

Causes of Car Accidents During the Holidays

Drunk Driving

Studies suggest that the most dangerous time of the year to be on the road is between Thanksgiving and New Years Eve. There are many causes of traffic accidents, but statistics suggests that certain factors contribute to the higher incidents of motor vehicle accidents during the holiday season.

The most current statistics available from the National Highway Traffic Safety Administration (NHTSA) show that the month of December can be especially dangerous for motorists. According to the most recent NHTSA study from 2001-2005, 38% of the traffic fatalities during the Christmas period involved a drunk driver or motorcycle riders, and 41% during the New Year’s period. These numbers are significant when compared with 31% taken for the year’s average as a whole.

Driver Distraction & Fatigue

There is an increase in impaired drivers during this time of the year as well as driver distraction. Although Massachusetts enacted a law which bans texting while driving in 2010, it is not uncommon for it to go largely ignored during this busy time of the year. The reality is that more demands on our time with expectations and tensions running high can be physically and mentally exhausting for many, if not most people. Add in this increase of driver fatigue to the equation and the likelihood of a crash could increase exponentially.

Road Rage & Poor Weather Conditions

A study performed by insurer State Farm and KRC Research, questioned 1,000 U.S drivers over-18 years old. A full 64% of respondents said they experienced at least six acts of aggressive driving during the past three months.  Moreover, one-third of those drivers admitted they are more likely to be provoked to aggressive driving during the holiday season. Road rage is a symptom of today’s society where Americans are more likely to be stressed out, over-worked, short on time and money, and more likely to be depressed. During the holidays all of these issues are likely to be exacerbated so it should come as no surprise that there is a spike in the instances of holiday road aggression.  Combine holiday road rage with the poor weather conditions that can be all too common at this time of year, and you’ve got a “perfect storm” for a motor vehicle collision.

With all of the added stress on people during the holidays the last thing anyone wants to think about is a car accident, but being aware of the risk factors that are associated with holiday travel can help make your trips safer.

Keep Christmas Merry – Be Safe

Be Courteous For a season where there should be goodwill toward men, there is often a big lack of it on the roadway for the reasons given above. Make an extra effort to adhere to driving etiquette and take the “higher road” if the other driver is rude to you.  For example, if you use your directional, don’t lane-dodge.  A simple polite act may be the determining factor that impedes a car accident.

Drive Sober  Remember that one drink can impair your judgment and increase the risk of a motor vehicle accident.  If you know you are going to be drinking, do not plan on driving.  Plan ahead by designating a sober driver before the party begins or use public transportation if its available.  Call a taxi, Uber, or a friend if you must.  If you get behind the wheel of a car drunk, it may be the biggest regret of your life.

Drive Rested: If your exhausted from shopping, upset, or just plain tired, you’re more likely to drive carelessly or with aggression, so make sure to drive when you’re at your best.  If you need a pick-me-up, don’t be too caught up in the chaos of the season to indulge.  Have a cup of coffee, a desert or put some holiday music on.

If you do find yourself in a Massachusetts car accident, the attorneys at the Wright Family Law Group can help  you determine if you are entitled to compensation for your injuries.  Call us to schedule your free, no-obligation consult.

Holiday Spending and Bankruptcy: Don’t Make a Mistake ‘Yule’ Regret

Bankruptcy is never a pleasant thing to think about, and it is likely the absolute last thing you would want to think about during the holidays. In today’s frantic world, it’s so easy for time and money to be overextended and it becomes even more overwhelming for many people during the holiday season. It’s important for all of us to be responsible while using credit cards, and to use “sound financial planning” in all holiday shopping to avoid future problems. If you’re feeling the holiday pressure to “out spend” what you make or currently have credit card debt that is snowballing as the holiday season rolls along, read on.

A New Year, A Fresh Start?

It can be enticing to just give in to the pressure to do whatever it takes to get the gift-buying out of the way this time of year. Many, if not most people feel obligated to give into giving/receiving expectations and don’t want to think about the consequences. “I’ll just get Uncle Tom taken care of, then I’ll worry about the credit card bill later on in the new year…” If you find yourself adopting this thinking pattern, first, ask yourself whether or not you will even have a job next year to pay the credit card will with. Then, consider that even if you do, is it going to be worth 9 months of bills, only to succumb to the pressure again next year?

Many cash-strapped consumers erroneously believe that a chapter 7 bankruptcy filing will get rid of any charges they put on their credit cards while doing their holiday shopping. This misplaced “new years” mind set causes many people to think they will have their fresh start and be “off with the old and in with the new”, not realizing how long a bankruptcy procedure can take.

Credit Cards – Avoid Charging Gifts

If you already know, or reasonably believe that you will have to file a bankruptcy petition in the coming months, beware that your pre-bankruptcy holiday credit card spending may be risky business. Racking up debt within 90 days of the filing of a bankruptcy petition is preemptively fraudulent, and many would-be bankruptcy clients are shocked when that word surfaces during their initial consultation. “What do you mean, fraud? Me? Never!” are a few of the things people frequently say when this issue surfaces. Most people do not intend to engage in fraud, but for some, the temptation to use a credit card during the holiday shopping rush is overwhelming. These are important issues to keep in mind if you are thinking about filing a bankruptcy petition within the near future.

Cash Advances – You Better Watch Out

Like the charges on your credit card, if there are cash advances taken on a credit card within the 90 days prior to your bankruptcy filing that totals more than $600 you may be distraught to learn that it may not be dischargable. A bankruptcy trustee will not be pleased to see large sums of cash drawn against unsecured lines of credit timed right around the holiday season. Be mindful that it is considered fraudulent if the debt is incurred with the intention not to repay it and the credit card company can come in and object to those specific cash advances being discharged in your bankruptcy.

The Bottom Line

Use good judgment and do your best to to make this holiday season “cash-only”. You will never regret not digging the debt hole deeper only to find it even more difficult to later escape through a self-propelling cycle of credit card use. You may cringe at the thought of being dubbed a “Grinch” by your kids, but you will only be doing your them a favor in later life. Instead of giving into their material desires, they will see you exercising self-control and frugality, which are both good character traits to model.

If the damage has already been done, there is still hope and it is never to late for a fresh start.  If you are a Massachusetts resident, consult a qualified bankruptcy attorney to discuss your options and see what relief you may qualify for.

Helpful Tips for Co-Parenting During the Holidays

Source: Helpful Tips for Co-Parenting During the Holidays