News from the Firm

Take Note: Our Legal Service Operations and COVID-19

As news of the coronavirus (COVID-19) global health crisis continues to evolve, we at Brick, Jones, McBrien and Hickey, LLP want to share with you our plans for keeping our clients, employees and community secure.  We understand that during this uncertain time, our clients’ legal needs will not go away.  

As of June 7, 2021, all visitors whether vaccinated or not will still be required to wear a mask. However, if agreed to between visitors and attorney or staff member, masks can be removed while in a conference room with the door closed. We will update these policies as more information is provided by the CDC and the State.

In an effort to continue to address our clients’ needs, and to be cognizant of the recommendations of health experts, we will, whenever possible, encourage our clients to meet and consult with us virtually.  Our firm infrastructure and procedures allow our lawyers and staff to work remotely while still providing legal guidance and assistance of the highest quality.  

For now, the Massachusetts Probate and Family Court remains open but has restricted in-person appearances of all kinds.  Only emergencies are being heard through telephonic appearances. Matters of a non-emergent matter are being rescheduled to a later date.  We will be in touch with individual clients to discuss how these restrictions may impact your matter.  

We remain committed to servicing our clients while following recommendations from the World Health Organization, U.S. Centers for Disease Control and Prevention and local authorities.  We value the safety and wellbeing of our clients and employees above all else.  

Please do not hesitate to contact our office via phone or email should you have any questions.

Trying to keep kids safe from COVID hotspot

I brought my children here during COVID to keep them safe. I still think it was the right thing to do. But my husband didn’t agree, and I was recently ordered to return them to Mexico. I know that I can appeal the decision. I did file a notice of appeal, but I think I have to go back anyway unless I want to risk even more trouble.  

My husband and his family are all anti-vaccination and our home in Mexico is in the middle of a terrible COVID hotspot. I am vaccinated but am very worried about my children if I have to return them — one is immune-compromised. Is there anything else I can do to avoid going back at least until the pandemic is over?

You can file a motion to stay the order. The burden is really high, and these motions are not generally allowed. You have to show the judge that you have a likelihood of success on appeal. Initially you file the motion with the trial judge. You should expect it to be denied — after all that was the judge who ordered you to go back. You can then file the motion in the appeals court, where you may have a chance if they believe your appeal will be successful. This is a hard thing to prepare on your own. If at all possible, you should hire an attorney to prepare the motion — even if it is just for that limited piece of properly preparing the paperwork for you.

I don’t know what evidence you provided to the judge during the trial, but I hope you presented evidence of your child’s medical issues as well as your husband and his family’s position on vaccination and statistics of COVID in that area of Mexico. If so, use all of that in your motion. If you did not present that information at trial, you will be prevented from offering it during the appeal process. The appeals court can only consider evidence that was presented to the trial court.

Because motions to stay do not have a high percentage of success, I recommend you also immediately file for custody of your children in Mexico. If you have to go back perhaps there is a way to protect them before you get there. For example, there are areas where COVID is not as prevalent in Mexico — maybe there is a way to get permission to relocate within Mexico. You can also try to petition the court in Mexico to allow you and the children to remain in the USA until the pandemic abates in Mexico. Massachusetts may not be the right place as parenting time would be hard for your husband to exercise but if you offer to move to a border state, options may present themselves.

Rule Change adds wrinkle to divorce

Q. My wife and I have been negotiating our divorce agreement for almost a year working carefully with our daughter’s therapist to cause as little disruption to her as possible.  We have an agreement and suddenly my wife’s lawyer said we need to put the breaks on for a month because of a new court rule.  I don’t know what the new rule is and fear it is just another ploy to prevent us from getting this done.  I am so frustrated by the lack of progress I am almost ready to throw in the towel and just file for divorce – something I don’t feel great about but I don’t know how else to move forward.

Do you have any other suggestions before I move forward with a contested divorce?

A. Given the timing of her putting on the breaks, I suspect the new rule is the change in the Probate and Family Court Standing Order 2-16 which takes effect September 1, 2021.  For many years, all couples with minor children going through a divorce were required to take a Parent Education course approved by the state.  This program raised a lot of questions, not the least of which being – if the parties have a good co-parenting relationship and have agreed on all child related provisions [which many people do] why would they have to spend the extra time and money to take a class to teach to do what they are already doing?  Many such clients of mine over the years have expressed frustration – especially when their schedules made it hard to attend the classes.

Under the suspension order, if you file for divorce after July 12, 2021, you are no longer obligated to take the course.  However, if you file before July 12, 2021, not only are you still required to take the course, but the time frame in which to do so is accelerated.  So, the big question is – did you take the course and get your yellow certificate?  Did your wife?  If not, I think you have your answer regarding this sudden need to halt the process.  Rather than stress over the mystery – I suggest you reach out to your wife’s lawyer and ask if this is why she wants to hold things up.  Assuming that is the case, suggest signing everything now and just waiting to file until July 12th.  There is no harm in signing papers now.

If for some reason you learn there is another reason for halting the process, before you throw the last year of your time in the trash bin, calmly express your frustration and your feeling of needing to move forward in some way.  Chances are they will not want the last year to have been a waste either and you can come up with a plan to move this across the finish line together.

Medical Diagnosis is a Change in Circumstances

Q. My Ex got primary custody of our two girls in the divorce and I see them every other weekend and one night each week.  Our youngest is 10 and was diagnosed with diabetes last month.  My Ex was never good with medical things – I always take them to the dentist and annual pediatrician appointments because she is so anxious about medical issues and passes out when she sees needles.  This issue has made dealing with diabetes particularly challenging for our family.  I have been going over to give Kelly her shots multiple times each day but they live 20 minutes away.  

The girls have recently been telling me how angry their mom is all the time and how much pressure she is putting on our 12 year old to learn how to give Kelly her shots.  This is so unfair to the girls.  I know my Ex loves them but she is no longer the best person to parent them every day.  She won’t agree to change the schedule – do you think a court would change it on these facts?

A. This situation is serious and the court will recognize it.  File a complaint for modification asking for primary custody of your children because of this medical change in circumstances.  Also file an emergency motion for a temporary change in the parenting plan.  This will allow you to get in front of the judge quickly after your Ex is served and ask for an immediate change to the plan so you can keep Kelly safe.  Right now, it may not even be OK for Kelly to sleep at her mom’s house until her diabetes is regulated.  

While this may seem a drastic step, it may be the push your Ex needs to get herself help.  Any parent who is too anxious to bring their children to a routine doctor or dentist appointment clearly needs some sort of help themselves.  It is unreasonable to expect you to drive over 4-6 times per day to give Kelly shots or to force her 12 year old sister to do it.  What happens when Kelly’s blood sugar spikes overnight – are you supposed to go over at 2 AM to give her insulin?  Can your Ex even handle doing a finger stick to check Kelly’s sugar overnight?  

Medical technology has come a long way for diabetics but technology sometimes fails.  Even when Kelly gets set up for insulin pumps and glucose monitors there are things your Ex will need to be able to do.  You should expect when you file your complaint your Ex will come in and argue all the medical technology that she is going to employ to manage things.  Over time the kids can transition back to spending more time with her once technology is in place and working well and your Ex has worked out some of her issues so she can handle the unforeseen.   For now, Kelly’s health requires a capable parent under the same roof.

Fed up with spouses drinking

Q. My wife is an alcoholic.  She was in recovery for 8 years since our daughters were toddlers but began drinking again a year ago.  I have managed to keep it from our kids, but have not convinced her to get help.  Our girls are going to sleep away camp for two weeks.  I plan to give my wife an ultimatum.  Either she goes to rehab, or I file for divorce and she moves out.  Either way, I want her gone by the time the kids get back.  I am done cleaning up and keeping her secret.

If she won’t go to rehab, how do I get her out of the house before the kids come back?

A. While it is entirely understandable that you are fed up with the situation and done cleaning up and keeping secrets, take a step back and think about how your kids will feel when they return from camp to find you have kicked mom out of the house – especially where you say you have kept her secret from them for the last year.  Or do you plan to tell them that she up and left you all?  Either way, they will not understand why she disappeared.  I am not saying don’t do something about the situation, but I am saying you need to make sure you have supports in place for your girls and that you are prepared to be honest with them that their mom is sick.  Line up a therapist to see them through this before they get back from camp. 

You also need a plan B.  If she refuses to go to rehab, you will not get her out of the house before the kids come home.  The courts are still very backlogged from the last year of shutdowns.  You need to file a complaint for divorce and will be lucky to get a summons issued by the time they get back from camp.  Once you have a summons you can file a motion to vacate asking for sole use and occupancy of the house and serve your wife with both.  It is hard to know how far out the hearing will be on your motion – every judge’s schedule is different.  Given that this has been going on for a year, it is not likely to be seen as an emergency.   

If you have to file the motion to vacate, you need to prepare an affidavit stating in detail your wife’s behavior, the efforts you have made to keep your wife’s drinking from your children, the efforts you have made to get her help and how her drinking is impacting you emotionally and physically.  But, the standard for removal isn’t just how this is impacting you – the court will look at the best interest of your children – if there is no real impact on them because of your herculean efforts, that may work against you.  

Bottom line, use all of your powers of persuasion to get her to rehab.

Keep Ex’s medical marijuana away from kids

Q. My Ex had cancer years ago and used a lot of medical marijuana.  One of the reasons for our divorce was his carelessness with the marijuana around our children – leaving edibles on the counters near their snacks, etc.  We had some very scary near misses.  I learned last week that his cancer has returned.  I feel terrible for him but I am also incredibly nervous his prior habits will return.  He is remarried with two young children.  And he has our teenage daughters every other weekend.

I am worried our girls are at the age where easy access will encourage experimenting.  I am also worried for their younger brothers.  I don’t know how to handle this without looking like a horrible person.  I have been a nurse for years and have seen the devastating impact drugs can have on families.  What are my options?

A. One option is to seek a modification of your children’s parenting time until your Ex is well again.  However, that will not go over well with your Ex, your children or the judge regardless of your good intentions.  There are better options to try first.

You need to have a very honest conversation with your teenage daughters.  It would be best if you and your Ex can get on the same page and have the conversation together.  Sit them down and explain that he is sick and that sometimes with this kind of illness, medical marijuana is a help.  Explain that just because he uses it does NOT make it OK for them to try it even if it is out in the open or they find it.  Tell them that any experimentation they may want to undertake would possibly harm their father because he would then not have what he needs when he needs it.  Putting it that way will give them something serious to consider if they are tempted.  Also explain the dangers to their developing brains if they use his medication.

Take it a step further and have a conversation with his Wife.  There is a right way to give her a heads up.  Don’t point fingers at him but, rather warn her that he was so sick last time he wasn’t always capable of cleaning up after himself and your children were finding his edibles around.  That way it sounds like you are just concerned for her children and she will know to keep an eye out.  

Also explain to your girls that while marijuana would be bad for them, it would be very bad for their younger brothers so it would be good if they can be extra helpful with their brothers while their dad is sick.  

With any luck, you can all pull together and be the supportive team your Ex needs right now.  But, if you have any inclination that the “right” way of doing this is failing, you can always ask the court to intervene – then you can at least say this was your last resort.

Husband dragging out divorce proceedings

Q. My husband and I have been talking through the divorce process for a long time (years actually).  He is a very sensitive guy and it took a long time for me to admit we really just need to be divorced.  We are getting along well but he is easily upset.  When he gets upset, forward progress in our discussion stops until he is feeling better.  It has been almost two years of talking at this point and I am so ready to be done.

I’m having trouble getting this across the finish line and I need to move on.  I want to buy my own house and begin dating.  My lawyer keeps telling me to be patient that they will start drafting an agreement soon.  She has been saying that for the last nine months.

I just can’t live like this any longer.  What would happen if I am caught dating?  I don’t want to be accused of adultery but I need to live a little here

A. You do not need to be concerned about adultery.  Your marriage is over, your husband knows it and your lawyers are negotiating an agreement.  Your lawyer is telling you to be patient because she is worried about your husband’s reaction if he learns you are dating.  It sounds like he is easily triggered and having him slow the process even more because his feelings are hurt yet again won’t help you.  That being said, there are ways to begin dating discretely.  Do not date anyone he knows.  Do not go anywhere you and your husband have ever been together.  Do not go anywhere you will be seen by friends in common or family.  And by all means, stay off social media.

If you do all of those things and he still finds out, gets sad and drags his feet even more, maybe it is time to file a complaint for divorce so his ability to control the pace of the process is minimized.  While filing a divorce complaint may not set the tone you hope to maintain, certain timelines will start to apply.  

Also, if you want to buy a house, you do not have to wait until the process is over.  Assuming there are sufficient assets, ask your lawyer to propose each of you take an advance against your respective share of the marital assets.  This means you agree on an amount, you each open new accounts in your individual names, fund them with equal sums and those accounts do not get divided again when you are finalizing the asset division.  You can then use that money to buy yourself a house.  If the two of you are still living together, this is a particularly good idea.  Based on what you said about him, the longer you continue to live together the longer he will hold onto the belief that he can win you back.

Ex tries a Slick Divorce Maneuver

Q.        My husband is making our divorce process incredibly difficult.  He moved to our ski condo in Maine and filed for divorce there claiming that is where we are domiciled.  We are not.  We did spend most of the winter in Maine because of COVID when the kids were doing school remotely three days per week.  However, we were here every Monday and Tuesday for them to do school in person and came back permanently in April so they could return in person.  I filed for divorce here.

            He filed a motion to dismiss my divorce complaint and lost.  As soon as I knew he lost, I requested a hearing on my motion for support orders and custody.  We had a hearing this week and the judge refused to hear the case because I did not properly serve my husband with the papers.

            I don’t understand this – I mailed the papers to his lawyer on time and told them about the hearing which I was supposed to do.  Now the court won’t reschedule us until September and my husband says he has enrolled the kids in school in Maine.  Can you tell me what I did wrong so I don’t do it again?  And do my kids have to change schools?

A.     Without looking at the docket to be sure my hunch is that when your husband filed the complaint for divorce, his lawyer filed a limited appearance solely for the purpose of contesting jurisdiction.  That lawyer’s appearance ended when the motion to dismiss was denied.  If you only sent a copy of the motion and the notice of hearing to the lawyer and not to your husband, he did not have proper notice of your motion.  Unless he hires a new lawyer or his prior lawyer files a general appearance in the case, you need to serve him directly with the motion and notice of hearing date. 

          But, just because he pulled a fast one here and you do not get an immediate support and custody order, doesn’t mean he won anything.  When you have your hearing in September, you can ask for support retroactive to the date of service of the motion.  If the judge is sympathetic, you might get it.  But if not, you can still look for a slightly greater asset division in the end because of all of the things you are paying over these months without help from him.

          In terms of school, he does not have sole legal custody and you do not agree to change the children’s school.  Write a letter to the school where he registered them and state your objections and confirm their enrollment in their current school.  Also, clearly notify the current school you do not consent to unenrollment. 

          Finally, you should take a page out of his book.  File a motion to dismiss his action in Maine and use your children’s school attendance records as support to reflect there was never an actual move to Maine.

Keeping estate plan intact after divorce

Q.  My husband and I are finishing up creating our divorce agreement.  Years ago, we worked with an estate planner and did a detailed plan, made wills and trusts for our children’s benefits which I believe come to life through our wills and signed the papers for health care power of attorney.  We also each took out life insurance policies and named the other as beneficiaries.  

I heard that all of these documents will be invalid once we are divorced.  We don’t really want to have to start over. Is it true we can’t use these documents anymore once we are divorced?  Our situation is very amicable and we still want to nominate each other as trustee and beneficiary.  

If we can’t do this any longer, can we nominate our oldest son?  He is 17 and very responsible.  

A.  You need to think hard about a few things here: (1) As amicable as you are feeling today, down the road when you are each in new relationships – do you really still want your Ex to make your medical decisions if you can’t?  (2) Do you really trust a 17 year old to properly invest life insurance proceeds, understand and manage a trust, and care for his younger siblings?  If you answer yes to question 2, do you want to take away his ability to go off to college and do things college kids do if you and your soon to be Ex get hit by a bus leaving the court house after your divorce hearing?  I am going to assume your answer to both things are no.

Under Massachusetts law, “Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce, or annulment, the divorce or annulment of a marriage:  (1) revokes any revocable (i) disposition or appointment of property made by a divorced individual to the individual’s former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual’s former spouse…” [See M.G.L.c. 190B, section 2-804(b)].  Thus, if your divorce agreement does not specify that you will each remain beneficiaries of the other’s life insurance policies or serve as trustee of the trust created under the will, presumably to benefit your children, you would have a problem.  The quick and easy fix is to include language in your divorce agreement which affirms your respective beneficial interest in life insurance and role as trustee of trusts – at least until your children are emancipated then money and oversight can go to them directly if you like.  Do check with your insurance company to see if they require posts-divorce execution of a confirmation of beneficial interest – some do, some don’t.

I do urge you to appoint new healthcare proxies – these are simple forms to update and will avoid awkward situations later on.  

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