Wednesday, September 12, 2012

Harassment Prevention Orders - What are they and How do I Qualify?


Harassment prevention orders are found under chapter 258E of the Massachusetts General Laws. This chapter was enacted as a response to inadequate protections for those being abused by acquaintances or strangers, as such protections are not available via Abuse Prevention Orders (aka Restraining Orders) found in chapter 209A.

A harassment prevention order can prevent the defendant (alleged assailant) from having contact with, abusing or harassing the plaintiff (alleged victim) and to remain away from the plaintiff’s residence and/or work.   The order can also provide compensation to the plaintiff for losses suffered as a result of the harassment.

In order to obtain the order, there must be showing of 3 or more truly threatening events that involve an intent to cause fear, intimidation, abuse or damage to property and that do actually cause fear, intimidation, abuse or damage to property.   Even if these individual events don’t each cause the requisite fear, a combination of all three events will suffice.   A harassment prevention order may also be obtained if the defendant engaged in an act that by force, threat or duress causes another to involuntarily engage in sexual relations, or that constitutes one of the following crimes:

-        Indecent assault and battery on a child under the age of 14, a mentally retarded person or    someone age 14 or older;

-        Rape, including rape and abuse of a child;

-        Assault with intent to commit rape;

-        Assault of a child, with intent to commit rape;

-        Kidnapping;

-        Stalking;

-        Criminal harassment; and

-        Drugging persons for sexual intercourse.

A harassment prevention order is initially temporary, and can last up to 10 days.  Thereafter, both parties must appear in court to present testimony and evidence as to why or why not the order should be extended.

Harassment is extremely serious and should be addressed, especially in situations involving more than 3 instances of harassment.   Safety is paramount, and you should speak on an attorney or law enforcement immediately following an instance of abuse.



(c)2014 by Law Office of Leila J. Wons The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Friday, August 10, 2012

Marriage after civil unions

On July 26, 2012, the Massachusetts Supreme Judicial Court issued an opinion in the matter of Elia-Warnken v. Elia. This case involved a same-sex couple who was in the midst of divorce litigation. The issue brought before the SJC was "Whether or not a Vermont civil union must be dissolved before either party to that civil union can enter into a valid marriage in Massachusetts to a third party." (link to opinion here) 

Elia-Warnken had entered into a Vermont civil union that he never dissolved. Thereafter, he married Elia, who argued that the marriage was void due to polygamy. Here's the tough part:  Vermont eventually went on to recognize same-sex marriage, but specifically stated that civil unions then existing would not automatically convert to marriage. Since Massachusetts expressly refused to create civil unions in lieu of marriage, wouldn't it make sense that a Vermont civil union be treated differently from a Massachusetts marriage?

The Court looked at the language behind Vermont's civil unions to determine that they, at the time created, were meant to provide the same protections and advantages to same-sex couples as marriage, defined as "the voluntary union of two persons as spouses, to the exclusion of all others." Under the principles of comity, a state must give "respect and deference to the legislative enactments and public policy pronouncements of other jurisdictions," including out-of-state marriages. As such, Massachusetts views Vermont civil unions as the equivalent of an out-of-state  marriage.

The Justices further pointed out that allowing both the Massachusetts marriage and the Vermont civil union to remain intact would result in Elia-Warnken having similar obligations to two different people (his former partner and Elia), causing great confusion. Both parties could request child or spousal support from him, plus other benefits afforded under the law.

Bottom line:  Although this case applies to Vermont civil unions, it could easily apply to civil unions/domestic partnerships of other jurisdictions and countries, given the language used.  As such, couples looking to wed in Massachusetts should ensure that their out-of-state civil unions have been dissolved prior to getting married.

(c)2014 by Law Office of Leila J. Wons The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Monday, July 2, 2012

A Few Words of Advice from a Minnesota Judge

Judge Michael Haas of Cass County Minnesota retired in 2002 after 26 years of service as a Judge. The following 200 words issued by him (we are not certain whether they were stated on or off the record) have been referenced in multiple appellate court decisions and in Lawyer's Weekly. Judge Haas put into very simple terms a concept that so many people fail to grasp, and that are crucial for parents to understand when they are going through a break-up.


"Your children have come into this world because of the two of you. Perhaps you two made lousy choices as to whom you decided to be the other parent. If so, that is YOUR problem and YOUR fault.

"No matter what you think of the other party -- or what your family thinks of the other party -- these children are one-half of each of you. Remember that, because every time you tell your child what an 'idiot' his father is, or what a 'fool' his mother is, or how bad the absent parent is, or what terrible things that person has done, you are telling the child half of HIM is bad.

"That is an unforgivable thing to do to a child. That is not love! That is possession. If you do that to your children, you will destroy them as surely as if you had cut them into pieces, because that is what you are doing to their emotions.

"I sincerely hope that you do not do that to your children. Think more about your children and less about yourselves, and make yours a selfless kind of love, not foolish or selfish, or your children will suffer."



(c)2014 by Law Office of Leila J. Wons The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Wednesday, June 27, 2012

Parental Alienation

One of the most difficult cases I work on are those dealing with parental alienation.  Parental alienation often occurs during or following divorce, and is characterized by a child expressing unreasonable, unjustified and strong dislike or even hatred for a parent. Most often, alienation occurs against the non-custodial parent, though it often takes place in situations where parents share physical custody of their child.

There are several things that can trigger alienation, though the most common appears to be the result of repeated negative remarks and ideas expressed by one parent against or about the alienated parent. As children are very intuitive and hear much more than we think, they are easily influenced by negative conversations or remarks they may hear about one parent. In additon, as divorce is a very difficult event in a child's life, he may turn to scapegoating as a coping mechanism, thus unreasonably blaming one parent for the breakdown of the family unit.

It is important to take action as soon as possible if it appears that alienation is taking place or being attempted. The longer a child is exposed to negative comments about one parent, and the longer she is allowed to act on these unreasonable feelings by refusing to attend visitation or by not following that parent's rules, the harder it will be to undo the damage and re-establish a healthy parent/child relationship. 

On June 8, 2012, a judgment was issued in the matter of Hendren v. Lee out of the Middlesex Probate and Family Court. This Judgment of Modification transferred sole legal and physical custody of the parties' son to the mother, the alienated parent. The judgment included a provision that the mother and child attend weekly reunification therapy and that the Father, his family, his friends and the son's siblings cease all contact with son for 90 days in order to effectuate said reunification. Unfortunately, the parties' older children were by this time beyond the jurisdiction of the court and could not be made to attend therapy with their Mother.  As such, it is very possible that, due to the one parent's repeated alienation, this mother will never have a relationship with her older children. The children will likely never be able to attend holiday meals together at their mother's home, or take family vacations with their mother.  As the court noted, this sort of alienation is not a child's best interest.  Further, studies show that children succeed more in life if they have healthy, loving relationships with both parents.

In sum, parental alienation is a tragic yet common occurence that can be prevented by seeking assistance from the court at the earliest sign that parental alienation being attempted.




(c) 2014 by Law Office of Leila J. Wons. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Tuesday, March 6, 2012

Alternative Reproduction and Parental Rights

On March 6, 2012, the Supreme Judicial Court held that a father who consents to in vitro fertilization is the legal father of the children born of this artificial insemination, even if the parties agreed that he would take no responsibility for the needs of said children (Chukwudera B. Okoli vs. Blessing N. Okoli).

This holding comes on the tail of recent case law, Della Corte v. Ramirez, which held that children born of a same-sex couple become "children of the marriage" and the parties (whether biological parents or not) are legally responsible for them. In other words, both cases hold that if children are born in a marriage through alternative reproduction methods, but the parties consent to same, then both parties become legally responsible for the children. Even if the non-biological parent never adopts the children, or if the parties reach an agreement amongst themselves that one party will bear no financial or legal responsibility for the children, both parents are still considered the children's legal parents. The intent of the parties to become parents is irrelevant, just like it would be if two people engaged in sexual intercourse that resulted in a pregnancy.

IN SUM:
If you're married, don't consent to conception unless you are ready to be held legally responsible for the resulting offspring.

(c) 2014 by Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Friday, February 3, 2012

In same-sex marriages, what rights do non-biological parents have?

On February 2, 2012, the Massachusetts Appeals Court upheld a lower court's judgment that a non-biological mother of a child born during a marriage who never co-adopted the child is nevertheless considered the child's other legal parent. In other words, the court found that it was irrelevant whether an individual failed to adopt their spouse's child or even partake in the conception (by assisting with the insemination, selecting the donor, etc.).  If the child was born after the parties were married, the child became a "child born of the marriage" and entitled to the same rights as a child born of a married woman. As such, the child is entitled to support from both parents, as well as appropriate custody and parenting time with the non-biological parent.

 Prior to this landmark decision, the law was very muddy in regards to the rights of a child born of a parent in a same-sex relationship. It was unclear whether that child, if not adopted by the non-biological parent, was still considered that parent's legal child. This problem forced the courts to apply the "de facto parent" test to determine if the non-biological parent had shared in more than half of the care-giving responsibilities for the child, therefore creating a parent-child relationship that would enable that parent to custody and visitation, and also establish a child support obligation.

While this new case (Della Corte v. Ramirez) confers necessary rights on non-biological parents and the children born of their marriage, it is still imperative that same-sex couples complete co-parent/second parent adoptions. Doing so ensures that non-biological parents retain their important parental rights when traveling outside of the Commonwealth and into states that do not recognize same-sex marriage, or that have yet to establish case law similar to Della Corte v. Ramirez. For more information about the rights of same-sex parents, please contact Attorney Leila J. Wons.

(c) 2014 by Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice.
In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Tuesday, January 10, 2012

Divorce Homework

You have decided to file for Divorce . . . now what?

The decision to file for divorce is an extremely emotional one. It is never spontaneous, and is always the result of serious and thoughtful considerations. Likewise, the process of actually filing for divorce should be carefully thought out and planned. Jumping into the divorce “deep-end” is not the best option; dipping your toes in the water and slowly immersing yourself in the legal process will prevent you from quickly sinking and getting in over your head.


The first thing to do – even prior to hiring an experienced divorce and family law attorney – is to gather documents about your finances.


·        This includes finding out details about your money: Where is it kept? Who has access to it? What are the account numbers? What paperwork must you fill out to obtain statements for the past three years?  With regards to retirement accounts, the analysis will be the same: Who is in charge of investing our funds? Have any withdrawals been made recently? How can I obtain information regarding past investments, contributions and withdrawals?





·        You will also want to run a credit report to determine whether there are credit cards or loans in your name that you are not aware of, and also to see just how many open balances there are. Gather past account statements and determine who to contact to obtain additional ones, if necessary.





·        With regards to your home, make sure you know where the mortgage is held, what your monthly payments are, how those payments are made (i.e. direct transfer from a separate bank account) and what the outstanding balance is. Does this payment include taxes and insurance? Are there any outstanding property taxes due?





·        Next, you will also want to make a list of all of your monthly expenses: Who provides the cable, Internet and phone services, whose name are these under, and how are they paid? What about electric and heat? How is health insurance paid and how much do you spend each month on prescriptions for yourself and for the family?





·        With regards to the children, if any, what activities are they enrolled in, how much do these cost, and who is billed for them? Are any of the activities automatically deducted from a bank account or charged on a credit card?





Second, you need to obtain a certified copy of your marriage certificate. If you can’t find your original, contact the town hall in the city you were married in and they will explain the process. Unless you were married outside of the United States, the Court will not allow you to file your Complaint for Divorce without your marriage certificate (unless there are emergency circumstances present, in which case the court may allow you to file the certificate late via a Motion.)


Third, create a plan of action. If you have funds readily available for retaining counsel, or even if you have to proceed with Limited Assistance Representation, schedule a consultation with a dedicated divorce lawyer.  During your meeting, discuss the divorce process in depth, review potential problems that may arise given your specific circumstances, and also create a homework list for things that need to be completed prior to or immediately following the filing of your Complaint for Divorce.


 Making the decision to file for divorce is the first, and sometimes hardest, step towards resolving your family law matters. Doing your “homework”, seeking experienced legal assistance and becoming informed about the divorce process will ensure that you stay afloat in the dark and often tumultuous waters of the legal system.

(c) 2014 The Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice.
In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Wednesday, January 4, 2012

Limited Assistance Representation

This economy has placed those seeking divorce or assistance with domestic relations matters in a very difficult position when it comes to hiring an attorney. First, financial matters greatly impact all relationships and are often the cause of divorce or child support modifications. Unfortunately, this also means that obtaining legal assistance becomes seemingly impossible, as there are limited funds available.

A good option for individuals or families with more limited means who desperately need legal assistance is Limited Assistance Representation (LAR). Originally started as a pilot program out of Hampden, Suffolk and Norfolk counties, LAR has expanded to all Massachusetts Probate and Family Courts.  LAR allows attorneys to assist individuals with their domestic relations matters on a limited basis, without filing a general appearance. In essence, this means that an attorney can help someone draft legal documents, respond to discovery requests, and complete other legal writing. An LAR attorney can also appear in court on a specific matter by filing a Notice of Limited Appearance, with a Withdrawal on the same day.

By using LAR, an individual gains the assistance of counsel as s/he is able to afford it. Further, all agreements with regards to the scope of assistance by the attorney are made in advance and in writing, so there is no confusion as to how much or how little an attorney will do.

Many attorneys are taking advantage of LAR and also offering reduced rates for doing so. However, both attorneys and clients should proceed very carefully when entering into an LAR agreement. First, while an individual may only need assistance on specific matters (such as drafting a motion or appearing at one hearing), it is imperative that a complete copy of all documents filed in the matter be provided to the attorney for his or her review. Even if an attorney's assistance is limited to the drafting of one document, the attorney must be fully aware of all aspects of the case so that correct and thorough legal advice is provided. Second, it is common for other issues to arise during a court hearing that were not spelled out in court documents or pleadings. If an LAR attorney does not know the details or history of a case, they will not be able to provide as complete and thorough representation as they could. Third, the lines of where LAR ends and pro se representation begins can become blurry for the court and for the opposing counsel or party. This may mean that documents are sent to multiple individuals, the LAR attorney is contacted instead of the client, or vice versa. This is why a clear agreement between the LAR attorney and the client is so important; it provides both parties with the ability to clearly advise the court and opposing parties of the scope of representation, in order to minimize confusion. Last, the cost of LAR can quickly rise, especially if an individual ends up needing more assistance than anticipated. However, regular statements and amendments to the LAR agreement can help predict the overall cost of work and prevent surprises.

All possible problems aside, Limited Assistance Representation is a great alternative to those needing legal advice and assistance, but who have limited means and cannot retain general counsel. For more information on LAR, please look at this information from the Probate and Family Court Department, and don't hesitate to contact Attorney Wons for a consultation.

(c) 2014 The Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice.
In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."