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.
At this time, our physical office in Newton will be closed until further notice. However, our office remains open for business as our attorneys and staff are fully operational remotely. We appreciate your patience and understanding as we acclimate to a new way of doing business.
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.
Helping mom navigate tricky divorce
My mother is getting divorced. She has been separated from my 80-year-old step-father and living with me for the last year. They were scheduled for a trial in early May that was continued. There is no new trial date. The problem is, my step-father’s children are in control. He is nearly 80 and has Alzheimer’s among other serious health issues. They are acting as his guardians, controlling the money and forcing this to trial.
My mom, who is 14 years younger, signed a pre-nuptial agreement before their marriage 10 years ago and the terms are quite different if he divorces her versus if he dies. His kids didn’t know that when they became his guardians and filed for divorce. I am worried they are now hoping they can hold out until he dies so my mom gets far less. They are contesting the prenuptial agreement on his behalf arguing that he was not competent to sign back then due to health issues. That is why a trial is necessary.
My mom is too sad to be proactive. I don’t want to see her get the short end of the stick because of the actions taken by his kids who are not at all like him. Can I do anything to keep the divorce on track?
You can. If your mother has a lawyer, ask her for permission to speak with she and her lawyer. If she does not have a lawyer, help her get one — she should not try to represent herself at trial.
You should remind her lawyer that there is a law, Massachusetts General Laws chapter 231, § 58F that states “In any civil action in any Court of the Commonwealth in which one or more of the parties at the time of commencement of the proceeding is 65 years of age or older during the pendency of the proceeding attains the age of 65, the Court shall, upon motion of such person, advance the proceeding for speedy trial so that it may be heard and determined with as little delay as possible.” Ask the lawyer to file the motion for a speedy trial because the plaintiff is 79. They are entitled to quick action here regardless of the pandemic.
The courts re-opened for trials on July 13. If, because of health concerns, either your mom or her husband cannot or do not want to appear in person, many judges are also holding trials by zoom conference. She can certainly push this to a conclusion.
As for the children’s claims of competence, make sure your mother asks them “expert interrogatories” before trial so she knows who will testify about his lack of competence and what that person will say. This will give her a chance to hire and present evidence from a competing expert. Of course, she lived with him day to day for the last 10 years so she can also testify about his capacity from a factual standpoint.
Ex wants to stop paying alimony
I just received a complaint for modification from my ex looking to end alimony. He says because of the new alimony laws, he reached the time limit on his obligation. I read that if you have a 20-year marriage, he still has to pay. We were married for almost 20 years. He gave me the divorce papers the day before our anniversary and announced he was marrying his secretary.
I depend on that alimony and have structured my life so that I can meet my expenses, but I don’t have savings. I just have a modest house and will be able to collect on my teacher’s pension in a few years but I haven’t worked full time since our kids were born — I have a job share with another teacher. Our daughter had special needs and I had to be available. When she passed away two years ago, I didn’t have a real reason to change the job share I’ve had for over a decade.
Can he just end alimony?
These are very interesting facts that probably only impact a handful of people. Before the alimony reform act, we looked to the length of marriage to determine property division. The marital estate is divided as of the date of divorce, so the assumption was your length of marriage was based on the date of marriage until date of divorce. That is still the case for property division. However, under the alimony reform act, for alimony duration purposes, the length of marriage is calculated from the date of marriage until the date the summons is served in connection with the divorce.
People whose alimony orders predate the reform have encountered a number of unexpected situations the legislature did not anticipate. In fairness to you, the law at the time of your divorce should apply to the calculation of the length of marriage which would put you over the 20-year mark and would mean he only gets to modify his alimony upon his actual retirement, at which point he would have to show why he should be allowed to stop his alimony. If you Google and read Pierce versus Pierce that will give you some information on what he would have to show to end alimony.
He wants to apply this new definition to your 20-year-less-one-day marriage to save a few bucks. While I think you have a strong argument to apply the old definition, nothing is foolproof and judges have discretion. You could spend years and a ton of money litigating this point. Given you are each approaching retirement, I suggest you try to negotiate an alimony buyout. If you litigate and win now, he will only be back in a few years for round two. Figure out the number you can each live with now and move on.
Need to get daughter back to America
We moved to Germany three years ago for my husband’s job. It was supposed to be a one-year contract, but he has continued to renew it against my wishes. My career has been on hold since our move as I cannot work in Germany. Our visas expire on Dec.31. Our daughter should start first grade in September, but he will not let us come home. I have a job waiting for me in Massachusetts and I refused to re-rent our home which will be vacated in the end of July.
I don’t want to stay in Germany. Six months ago, my husband moved out of our rental home and stopped paying for everything. We got evicted and my parents have been paying for us to stay in a hotel. He withdrew all the money in our joint account and took my name off our joint credit cards. I am beginning to worry he will renew our daughter’s visa but not mine so I will have to leave and he gets custody by default.
I told him we were going home but he threatened to get a court order holding our passports so we cannot leave. Can I get a custody order in Massachusetts and use it to leave?
The better route is to get a lawyer in Germany and an emergency order of custody with permission to return home. Right now, your daughter has been out of Massachusetts more than six months so, unless she is physically back here, no orders will be issued here. Gather as much evidence as you can about the temporary nature of your family’s relocation to Germany including your husband’s initial job contract, any emails or texts between you and your husband where you state you want to go home, the lease for your home in Massachusetts and your job offer letter.
Also show the judge whatever evidence you have that your husband abandoned you and your daughter, moved out of the home, allowed you to get evicted, refuses to pay support so that your parents are now paying for you to live in a hotel. While I do not practice in Germany, I cannot imagine you will be ordered to stay.
Then, as soon as you are back in Massachusetts file for an emergency order of custody for your daughter. While she has been out of Massachusetts more than six months, it sounds as though Massachusetts remains her domicile and habitual residence. Argue you need Massachusetts to take emergency jurisdiction because of his actions in Germany.
If you ultimately leave without permission, expect your husband will file a petition alleging you wrongfully removed your daughter from Germany. So, begin to prepare your defense immediately. In addition to the other evidence, get proof you remained registered to vote here, your driver’s license remains here, you continued to file tax returns here, you are still a member of a church, etc.
Ex putting kids at coronavirus risk
I just learned my ex-husband’s nanny just left for a vacation in Florida. During the summer, we operate on a week-on, week-off rotation — we each have nannies for our weeks on. Next week is my week while his nanny is away. He fully expects, on her return, she will resume caring for our girls. I am not OK with this and told him she cannot watch the kids until she has been back and is symptom free for two weeks. He is angry and unwilling to take a week off (which was my first suggestion).
I told him I will not send the girls back to him given the increasing infection rates in Florida unless he either stays home or makes alternative arrangements. He of course threatened to call his lawyer. While I don’t want to spend money on legal fees, more than that, I don’t want our kids to get sick.
What will happen if I don’t send them back to him until she has been back for two weeks?
The short answer is people are being told not to withhold parenting time. However, there are always exceptions. If he is unwilling to acknowledge his nanny is putting all of you at risk, he is not acting reasonably.
If he files a complaint for contempt, it will likely be weeks before a summons is even issued and even longer before a hearing is held. You have not said he cannot see your children, you have drawn the line at having his nanny, who has chosen to take risks, caring for your kids. In these times, it is hard to know what the judge will ultimately do. So, make as many reasonable suggestions of alternatives as you can.
Offer to keep the girls for three weeks in a row (two of which are yours anyway) so she has her vacation and has time to quarantine on her return and then he can have them for the following two weeks (one of which would be yours and one his). Offer him the weekends during the three weeks you keep them, so he still gets to spend time with them. Offer him the use of your nanny during the week you are unwilling to allow his nanny to care for them. Offer to have the girls Facetime him each night. Be sure to put all of your suggestions in writing so that, if need be, you can show the judge that you tried to effectively co-parent with him and problem-solve in a way that kept your kids safe.
One of two things will happen, he will either accept one of your very reasonable suggestions, or he will file a complaint for contempt. If he chooses the second route, it is time for you to consider whether he can put their best interests first and maybe your summer schedule needs to be modified.
Hands-off ex won’t support kids
My wife moved out last September leaving our twin teenage daughters with me. She moved in with her girlfriend and says they have no room to even have overnights with the girls. She just kind of walked away. They occasionally borrow my car to go visit her but since the pandemic have been solely with me.
I would like to say I can do it all, but I can’t. I am trying to work from home, help our girls with school (thankfully it just finished but their summer jobs were cancelled), and manage the girls’ needs (one suffers from depression and the other is incredibly angry and is prone to violent outbursts).
I kept hoping my wife would come back but now I’m realizing I need a plan B — how can I move this forward? My wife doesn’t work and says she can’t pay support and that I need buy her out of the house if I want to live in it. What should I do?
First, you should hire an experienced divorce attorney to file for divorce. The sooner you file the sooner some action will be taken. Once you serve your wife with the complaint and summons, you can make a motion for temporary orders. In your motion, ask the judge to establish a parenting plan and a child support order. Let your wife explain to the judge why she does not want any parenting time and why she cannot get a job to pay some support.
Right now, it varies county to county and judge to judge how long it will take to get a hearing on your motion. But you can ask that any support be ordered retroactive to the date of service of your motion.
The court ultimately cannot make your wife be a mother but it can order her to support your daughters, including contributing to their uninsured medical expenses (including therapy for depression and anger management), tutors to help them with school work if necessary and other activities as well as college.
Depending on the kind of job your wife ultimately gets, you can ask the court to award you a larger share of the marital assets to make up for her lack of contribution to the girls’ expenses when she left, lack of support and lack of hands-on parenting thus requiring you to reduce your work load to tend to their needs. You may find a sympathetic judge to give you her equity in the home so you can use her share to help support your children.
Your taking action just might be the wake-up call your wife needs to step up to the plate and start parenting again. It is highly unusual for someone to walk into court and say they do not want time with their children and if she does go that route, a judge is not likely to think very much of any part of her argument.
Ex skirting the rules on serving notice
I have been spending winters in Mexico for the last four years. My job constructing pools is seasonal in nature, so I generally have no work each year from late November until late March. My ex knows this full well. I regularly fall behind in my alimony payments during these months and get caught up when I get my tax refund each year.
This year, I was unable to return from Mexico to begin working on April 1. The borders are still closed. As a result, I have been laid off for failure to return post COVID closure. Except I cannot collect unemployment from Mexico. Even worse, I have not been able to file my tax return, so I don’t have a refund to send my ex the usual catch-up payment yet. I emailed her and explained the whole situation, but she never responded. I knew she was mad.
When I am away, I have my mail held. The Post Office will only hold it for so long, so my sister picks up the pile once each month. She went last week and found an envelope from a sheriff so she opened it. My ex filed a contempt and there is a hearing scheduled for next week by phone.
All of my papers are at home so I don’t know how I can hire someone to help me. This is important because she is also in contempt — she hasn’t bought me out of the house yet and was supposed to do so two years ago when our youngest graduated high school. What should I do?
Filing for contempt when she is also guilty is pretty bold. It either means she is desperate for money or is mad enough to cut off her nose to spite her face.
First, your ex cannot tell the judge that you were properly served with a straight face. She knows you go to Mexico each year, she knows you are currently stuck there so you are not getting your mail thus no service — not cool. She also knows as soon as you file your tax return, you will pay your arrears, or at least as much as you can. And, perhaps most importantly, she knows she did not buy out your equity in the marital home two years ago and likely owes you far more than you owe her — that is called asking for help with unclean hands.
You should call in to the hearing and tell the judge you need a continuance because you do not believe you were properly served but, in any event, you are unable to retain counsel until you are able to return to Massachusetts to access your records. Tell the judge you think you were not properly served and explain why. Finally, tell the judge she owes you more than you owe her, so you need time to also file a counterclaim for contempt — that should get you the requested delay.
Weekend trips away are A-OK
My wife moved out of our home last October leaving our daughter, Emma, with me. Emma has special needs, so it has been quite challenging during the pandemic. In addition to needing extra help with learning, she has a lot of anxieties that manifest in obsessive compulsive disorder. She is particularly fearful of germs and has significant OCD rituals to stay healthy. I have been working very hard with her therapist over Zoom to keep Emma’s OCD rituals to a minimum. We are in a good place, but she has only been seeing my wife over Facetime on weekends since mid-March.
Although my wife filed for divorce in December, we have never been to court, and we have no agreements. Recently I have made a settlement proposal, hoping we would not have to spend what limited resources we have on lawyers. I think that was the first time she realized she will have to pay me child support and is now being quite forceful in her efforts to see Emma.
Meanwhile, my brother offered me his beach cottage in Rhode Island for Father’s Day weekend. No one has been there during this pandemic and we would be the first ones to use it this season. The cottage has no internet service and limited cell phone coverage. I told my wife about my plan and offered to take a drive for better reception. I received a threatening letter from her lawyer stating that I have no right to disrupt her parenting time and cannot leave Massachusetts with Emma.
Can I go or will I get in trouble for leaving the state with Emma?
You can absolutely go to Rhode Island for a weekend. What you cannot do is permanently move Emma to another state. A weekend get-away to a neighboring state is entirely permissible and there will be no consequences to your taking the trip — especially where you have given her two weeks notice of your intention to go.
Further, because she chose to move out leaving you in charge of Emma, and there is no court mandated parenting plan, she has no right to now dictate exactly when she will have Facetime chats with Emma. Offer her time to chat with Emma on Friday before you leave and Monday when you return (at a time convenient to you and Emma). You do not have to ask how high when she or her lawyer demand that you jump.
Don’t be surprised to find a motion to establish parenting time on your doorstep when you return.
You should prepare a detailed statement of everything you have done with and for Emma since your wife moved out and ask the judge to set an appropriate plan taking into account the status quo and Emma’s best interest.
Also ask for child support — Emma is entitled to it.
Long-distance custody sharing amid pandemic
When we divorced, my ex moved to Texas. He has limited time with our daughter, Ali, because he only gets two weeks of vacation each year. I bring Ali to Texas once per year either in the summer or at Thanksgiving. Now that she is 9, Ali is supposed to spend three weeks with him. He enrolled her in camp (which has been cancelled due to the coronavirus) so he can work. I am a teacher and don’t work during summers. He cannot tell me what his plan is for Ali’s care now that camp is cancelled other than he will figure it out.
I have been very strict about our quarantine because I am terrified of getting sick — who will take care of Ali if I am sick and she will certainly get sick if I am. He is not reliable and I can’t imagine him being her only parent. I cannot bring myself to get on a plane right now or make Ali fly, for that matter. I have tried to explain this to my ex and he is relentless even threatening that his new girlfriend has a ton of money and will hire a lawyer to take Ali away from me if I don’t “promote his parenting time.”
I have considered driving her there but can’t imagine feeling comfortable staying in hotels or eating in restaurants on the multi-day drive. I have considered tent camping and just can’t imagine having the energy to pitch a tent after driving all day. I feel there are no options. If I say no, am I risking custody?
These are unprecedented times and it is hard to know what judges are going to ultimately do when such matters come before them. To change custody, he would still have to prove a material change in circumstances warranting a change and that such a change in custody would be in Ali’s best interest. There are other standards he would have to meet in order to permanently move her to Texas. Regardless of the amount of money his girlfriend has, I don’t see her hiring someone who can convince a judge that your health and safety concerns for this summer help him meet all these objective standards.
Before flat out refusing him parenting time, offer him alternatives. Invite him to come up here to spend vacation time with Ali in New England during his vacation time. Offer to bring her to Texas for additional time once there is a vaccine for “makeup time.” Do all this in writing so that if necessary, you can show a judge you offered reasonable alternatives.
If he refuses your offers and you feel it is necessary, especially where he refuses to convey a care plan for Ali while he is working, say no. He would have to come back to Massachusetts to file a contempt complaint and your likely worst-case scenario would line up with the offers I suggested you make.
Protecting kids from ex’s social media rants
My ex used to post all kinds of crazy things about me on social media, from calling me names to making threats of suicide because of what she claimed my family and I did to her. Unfortunately, she is mentally ill.
During the divorce, she was ordered to stop posting on social media and stop making negative comments about me and my family to our kids. She was found in contempt a couple years ago when she went off her medication and started posting again. Before posting, she would friend the kids and their friends, maximizing the embarrassment to the children in the process.
As a result of her conduct, both of our kids have been in therapy for years. Last time, some of her parenting time was taken away so she only sees them one weekend each month.
Recently she has started up again. I told her I was going to file another contempt to further restrict her rights if she cannot behave appropriately. She seems to think I won’t win this time because the order restricting her posts and comments is “unconstitutional.”
Is she right? Was there a change in the law? Is the order no longer valid?
Two weeks ago, the Massachusetts Supreme Court issued a ruling in a case where there was a non-disparagement order. That particular order was declared to be an unconstitutional restriction on the freedom of speech afforded by the First Amendment to the U.S. Constitution. It sounds to me like your situation is quite different and distinguishable from the recently reported case.
In that case, the child who the judge was seeking to protect was a toddler. Your children are clearly old enough to have access to social media, as are their friends. Her conduct over the years has created such turmoil for your children that they need therapy. From a legal perspective, the states have an interest in protecting children from being exposed to the disparagement of a parent. Case law says judges can safeguard the physical and psychological well-being of minor children.
The child in the recent case showed no evidence of psychological harm. Your children are different, and they have been down this path before with their mom. It seems they are more vulnerable to a spike in her bad behavior. It is worth filing the complaint for contempt to see if the judge agrees your order is still valid despite the recent ruling. I think you will be pleasantly surprised.
But, if I’m wrong and she continues to escalate, you can apply for a harassment prevention order. If her speech is deemed harassment, surely it will not be protected by the First Amendment.
