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.

Brick, Jones, McBrien & Hickey LLP Welcomes Barbara L. Nason as Of Counsel

Brick, Jones, McBrien & Hickey is excited to announce that Attorney Barbara L. Nason will be joining the firm as Of Counsel. Attorney Nason is a highly skilled mediator and negotiator who is dedicated to finding creative solutions to help couples divorce amicably.

“We are so pleased to have Barbara representing our firm as a compassionate and highly skilled mediator.” – Attorney Alex Jones, Partner

Attorney Nason will be focusing on mediation at Brick Jones McBrien & Hickey. She is adept at helping divorcing couples find solutions for their unique circumstances that more traditional forms of divorce litigation may not. She believes that mediation and collaborative law often work best for those who have circumstances that are served best by working with a neutral, compassionate mediator.

“I really enjoy helping couples resolve their conflicts in a positive way through divorce mediation.” – Attorney Barbara Nason

Divorce mediation is an increasingly sought after solution during the COVID-19 Pandemic. Families face huge disruptions such as the burden of assisting with their children’s education and delays in divorce court hearings. Divorce mediation often resolves quickly and has a high success rate.

Attorney Nason is a member of the Massachusetts Council on Family Mediation and Past  President of the Massachusetts Collaborative Law Council. She was a former member of the faculty that certifies attorneys and other professionals throughout the Commonwealth in Collaborative Law. She is often appointed by the Probate and Family Court as Conciliator and Mediator helping families to resolve their issues.

The law firm of Brick Jones McBrien & Hickey LLP, located in Newton, Massachusetts, focuses on all aspects of family law practice ranging from relatively simple uncontested matters to complex and prolonged litigation and trials.  The attorneys of the firm have vast experience in handling all types of domestic relations matters including: divorce, post-judgment modifications and enforcement actions, prenuptial and postnuptial agreements, abuse prevention orders, child custody disputes (including international child custody matters), paternity actions, equity matters and family law appeals and family court litigation arising from the use of assisted reproductive technolog

Divorcing mom asks neighbor to be witness

Q. My daughter has been inseparable with the little girl down the street for years. They have sleep overs at each other’s homes regularly.  My husband and I are friendly with the parents because of the kids but we have little in common, so we really don’t socialize outside of the girls’ activities. Last weekend, the mother called, told me she had obtained a restraining order against her husband, had filed for divorce, that there is going to be a custody fight and asked that I talk with someone she called her daughter’s guardian as a witness for her.

I told her I needed to think about that and would let her know. My husband and I are shocked and unsure how, if at all, we should be involved here. Can you explain why their daughter has a guardian that is not either parent, whether we should be taking a side and how our talking with this person might impact our lives?

When there is a custody fight, the court will often appoint a Guardian Ad Litem to investigate and recommend a parenting plan. You should not assume that both parents have somehow become unfit and a third party is now in charge of the child.

Before you agree to speak with the GAL, consider what information you actually have to share. Just because one parent asks you to speak doesn’t mean you are choosing sides. You have clearly observed both parents interacting with each other and their daughter over a period of years. This means you have observed both parties in their roles as parents. It may be that you have seen good or bad parenting by both and if you speak out you may ensure the child has time with both parents post-divorce.

In asking you to speak out, she may be hopeful you have information regarding any allegations she is making of abuse. Before you make a decision, you should ask her what it is she thinks you could say that would be helpful. Unsubstantiated rumors are not helpful to anyone when spread in this capacity. But, chances are, if they lived close by, you or other neighbors would have observed or overheard loud or violent fights if they occurred – maybe another neighbor would have more to offer here and don’t be afraid to tell her that.

Getting involved is not a decision to make lightly. You or your husband could be called to testify at a deposition or even at a later trial if you agree to be interviewed. Testifying is an unsettling experience for many people and for sure would require you to take time away from work.

Bottom line, for the foreseeable future, you should host the playdates.

Attorney Maureen McBrien was recently honored as one of the Top Women of Law for 2020 by Massachusetts Lawyers Weekly.

 All Top Women honorees were selected by a panel composed of members of the legal community and representatives of Lawyers Weekly. The judges chose to honor individuals who have made significant contributions to the legal profession while also serving as role models for young women entering the law.

A seasoned family law practitioner, Maureen McBrien has significant experience at both the trial and appellate levels in a variety of family law matters, with particular expertise in alimony cases and litigation that arises from surrogacy and assisted reproduction.

Following a clerkship at the Probate & Family Court, she spent eight years in the domestic relations department at Todd & Weld before joining Brick, Jones, McBrien & Hickey as a partner in 2012.

“I really enjoy interacting with people and helping them out of unhappy situations,” 

Some of her cases have created new law and guidance for family law practitioners, including Relle v. Voorhis, a case decided by the Appeals Court in that found that marital lifestyle is not a factor to be considered when assessing whether an alimony recipient should continue to receive alimony beyond a durational limit. 

Following the Alimony Reform Act of 2012, she challenged aspects of the statute, in particular that the new law could not be retroactively applied except with respect to cases in which the obligation exceeded the durational limits in the act. Her interpretation faced opposition until the Supreme Judicial Court’s 2014 decision in Chin v. Merriot, when the court adopted the view espoused by the amicus brief McBrien co-authored in that case.

“I have never shied away from legal positions in which I believe, even if unpopular, but it was really vindicating when the SJC agreed with our view.” 

Attorney McBrien is active in the American Bar Association’s Family Law Section, where she sits on the council, as well as the Nominating Committee, Strategic Planning Committee and Publications Board. She’s been a fellow of the American Bar Foundation since 2016. McBrien co-authored “Assisted Reproductive Technology” and the 4th edition of “Massachusetts Practice — Family Law and Practice.”

Attorney Wendy O. Hickey Receives Prestigious Honor as one of New England’s Top 50 Women Lawyers from Super Lawyers for 2020

This year Wendy O. Hickey was again recognized as one of the Top 50 Women Lawyers of Massachusetts from Super Lawyers for 2020. Attorney Hickey has been previously selected as a Rising Star by Super Lawyers from 2010-2012, and subsequently selected a Super Lawyer from 2013-2019. This is the second year in a row that she has received this special recognition.

A partner at the firm of Brick, Jones, McBrien & Hickey LLP, Wendy O. Hickey has been working in the area of family law since 1994, initially as a paralegal, then after attending law school at night, being admitted to the bar in 2003. Wendy was also admitted to practice in the U.S. Court of Appeals (2007) and U.S. Supreme Court (2011).

Attorney Hickey focuses her practice solely on family law. She provides exceptional representation to those going through a divorce. Throughout the course of her legal career, Ms. Hickey has proven herself a devoted legal advocate who pursues favorable outcomes for all her clients.

Attorney Hickey regularly writes on various family law topics for the Boston Bar Association and now authors the popular Divorce411™ column in the Sunday Boston Herald.

A fellow in the International Academy of Family Lawyers (IAFL) and American Academy of Matrimonial Lawyers (AAML), Wendy serves on the Board of Managers for the USA Chapter and Massachusetts chapter respectively. Before joining Brick, Jones, McBrien, & Hickey LLP, Attorney Hickey practiced at Nissenbaum Hickey, LLP

Social Security, pension play role in agreement

I thought my husband and I had reached an agreement but a friend recently told me I might be getting a very different income than what we agreed because Social Security is going to cut off my benefits when my husband retires. I am 10 years older and already retired. I have my own IRA I take distributions from, but it isn’t huge. However, between my IRA and Social Security I can stretch to make ends meet. I live in an in-law apartment attached to our daughter’s house and take care of her kids while she is at work in exchange for my housing. So, I only have to pay for things like my car, health insurance, medical bills, food and utilities.

My husband is a teacher and is planning to retire in two years. At that point, I will start to receive half of his teacher’s pension. Is it true that Social Security will cut off my benefits when I start to receive my husband’s pension? I get $1,500 per month from Social Security and when my husband retires, my half of his pension is projected to be $2,000 per month. I can budget very carefully until then and dip into savings but, I’m not sure I can do this if my Social Security will go away when he retires. I will use up my savings very fast in that case.

The short answer is “Social Security is complicated” and you really need to consult an expert in Social Security law before signing your agreement. From what you have said, I assume the Social Security you are collecting is your own based on your own work over the years. If that is true, my understanding is there should be no reduction in your benefits — the reduction would be in your husband’s benefits if he is collecting spousal benefits on account of your Social Security.

However, if your Social Security benefits are widower benefits or spousal benefits on account of a prior marriage, that is a different story. In that event, there will be a somewhat complicated calculation that will reduce your Social Security retirement benefits when you start to receive money from your husband’s pension because of the Government Pension Offset rules.

If you do fall into the category where you will receive a reduction, it is not dollar for dollar but, rather two thirds on the dollar. The problem for you, however, is that the pension benefit you will receive is higher than the Social Security. If this does apply to you, the pension benefit would almost entirely wipe out your Social Security benefit.

But, again, this is only if your Social Security benefits are widower or spousal benefits. So, even though you have a very limited income, it would be well worth your money to obtain an opinion from a Social Security lawyer before potentially signing away a large chunk of your income upon your husband’s retirement.

Ex goes after family’s phone records

My ex-husband subpoenaed Verizon looking for records for most of my family. I have no idea why he would have the right to get cell phone records for my parents, my sister, our sons or my fiancé. I don’t even know why he is entitled to my cell phone records. I filed a complaint for modification back in January because I got laid off and I know he is making more money than he earned four years ago when we divorced.

Can I just ask Verizon not to produce anything to him?  If I make that request will they honor it?

He probably is not entitled to this information but, rather, is using discovery abuse as a method of harassment. Discovery in a child support modification is far more narrow than what is permitted in a divorce because you have far fewer relevant facts to establish. I can come up with plausible reasons he might have issued the subpoena the way he did but really only if you work for a family business that employs the other people you listed. I do not see how your family’s Verizon records would be evidence or would lead to discoverable evidence otherwise.

Your family members should each notify Verizon that they are objecting to the subpoena and request that Verizon not produce any records until otherwise directed by the court. Then, each person needs to file a Motion to Quash the subpoena stating that they have no involvement in your child support modification case and their privacy rights are violated by his request. To the extent they hire counsel to file the motion, they should also ask for legal fees from your ex.

Your records might be different. If he suspects you continue to work and that you are trying to hide your income from him just to drive up his support obligation, he can argue the need for your records to examine them for certain patterns in your calling and/or for purposes of determining where your phone is located. It is possible to determine from certain records whether your phone is in the vicinity of certain cellular towers for hours of time each day, which could tend to show you continue to work, perhaps under the table at this point. Unless you truly have something to hide, I suggest you permit Verizon to respond to the part of the subpoena seeking your records.

As for your sons, I assume where you are looking for child support, they are still dependent. I also assume they are on your phone plan. As their father, unless there are some unusual circumstances of which I am unaware, he should be allowed access to their records. So, again, I would not object to his obtaining those records.

If you remain silent on the things he probably is entitled to, it makes his overreaching on the rest that much more offensive to a judge.

Collaborative process not for everyone

My wife wants a divorce. I don’t want this, but I know I can’t stop it. She is insisting we hire a “collaborative team.” I don’t know what that means but she says her girlfriend is doing this approach and they have worked it all out and somehow she believes our families will blend together into one big unit.

I don’t want to become family with her girlfriend’s ex-husband, although maybe we have some commonality. I don’t want to be family with my wife’s girlfriend. And I don’t want our kids to think any of this is normal.

I promised to keep an open mind, so can you tell me what a collaborative team is and help me understand why I should use one?

You have come to the wrong person if you want convincing to use this process. There is a school of thought out there that if you have no easy out, parties who enter the collaborative process will see it through to completion and reach an agreement. Those who promote it swear by it and also believe it saves people a ton of money while also building the basis for a good relationship going forward.

A collaborative lawyer agrees to represent you so long as you are engaged in the collaborative process but, if you or your wife backs out of the process, that lawyer will not represent you in litigation regardless of how much you may want them to remain in the case. Instead, you would have to hire a new lawyer, bring that person up to speed on the case (so essentially paying them to understand the work that was already done) and that new lawyer can then represent you in litigation or non-collaborative mediation.

A collaborative team typically involves a lawyer for each party, a mediator, a therapist of some sort (often one for each party and one for the children), sometimes an accountant is involved to help with the financial side and/or a financial planner. Those who practice collaborative law swear it is more cost effective but suddenly instead of paying two lawyers and possibly a Guardian Ad Litem or a mediator, you are now paying as many as eight professionals to help you navigate the process — and if it fails, you have to hire all new professionals to get across the finish line.

I am not telling you don’t try it. Maybe it will help you build the kind of post-divorce relationship that will benefit your children. But if your wife is looking to mirror her girlfriend’s divorce, you don’t have to drink the KoolAid she is offering.

Ex can expect blackmail to backfire

Q. My husband and I are both representing ourselves at our upcoming divorce trial.  He provided his list of exhibits today which include recorded conversations of me that I did not know he made.  In his email he said he plans to testify about all kinds of things I said to him about my family years ago so that he can get a transcript of the testimony and use it to encourage them to write me out of family wills.  He thinks he can blackmail me into settlement.

The reading I have done suggests he cannot testify about conversations we had.  How do I prevent him from doing this?  I come from a highly religious family where an oath means something.  I have a mentally ill wealthy mother who just looks for reasons to write us all out of her estate plan so I actually am worried about this threat.

You need to beat your husband at his own game. Offer the email he sent you attempting to blackmail you into settlement as your Exhibit 1 at trial.  If he objects to your adding an additional exhibit, provide it to him in advance of trial and tell the judge the document did not exist until the deadline on which to exchange exhibits so you ought not to be penalized by his late blackmail attempt.

You should also make a motion in limine, which means to limit evidence.  In your motion, ask the judge to prohibit him from offering any recordings of conversations with you because you never gave him permission to record you.  You need to read your trial order carefully because motions in limine usually need to be scheduled for hearing at least 10 days before trial — don’t miss that deadline.

As for conversations, who else was present when you and your husband had these discussions? If you were alone, it was a private marital conversation which, according to Massachusetts law (Chapter 233, section 20) means you cannot testify about the contents. In Massachusetts we take this quite seriously — it is not a mere privilege which can be waived but rather a disqualification. However, if you do not timely object to the testimony, the judge will allow him to talk.

You should include in your motion in limine a request that he not be allowed to testify about husband and wife disqualified conversations. While it is a given, it sends a signal to him that he cannot do it.

For good measure, it wouldn’t hurt to call your mother and tell her just how crazy your husband has become and that he is making up all kinds of crazy stories and trying to blackmail you. That way even if he gets to her, she is warned and his plan will not have the desired effect.

Seeking child support may not be worth it

At the time of my divorce, I lived in Middlesex county and so did my husband. Two years after the divorce I was in a terrible accident and became completely disabled. My ex agreed our two daughters and I could move to upstate New Hampshire to live with my mom. At the time of the divorce, I was the primary parent and the sole wage earner, my husband was struggling with alcoholism. I was an associate at a big firm earning a significant income. Both my husband and I represented ourselves. I always felt the judge hated me and believed I was taking advantage of my husband with the “deal” I got. But I was earning all the money and had all the responsibility so I didn’t see it that way.

Anyway, my ex has been sober for the last 18 months and has a steady job. He comes up to visit our girls about six times each year for long weekends. He now lives in Plymouth county. I have the settlement from my accident and SSDI but am young and the settlement won’t last forever, especially if I have to pay for everything.  

I am considering seeking child support. But I’m afraid of the judge, who clearly hated me last time. Now that my ex lives in Plymouth county, can I file a modification there to get child support?

Before you panic and try to change counties (there is a process but it isn’t guaranteed), you should look up your docket number on the Masscourts website. Middlesex County was recently divided into north and south districts. Half of the judges are now in Lowell and the other half remain in Cambridge. It may be, depending on where you lived at the time of your divorce, that you no longer have the same judge. In that case, you should file your modification complaint as soon as possible and serve the summons on your ex as soon as you receive it. You should ask that the child support be modified retroactively to the date you serve the summons.

If you find that you have the same judge and you truly are unwilling to go back before him/her, you can file for a change in venue but you would have to allege there is a hardship of some sort that necessitates the change. Further, right now hearings are still being held virtually so I don’t know how you will meet this standard.

Last, while you didn’t ask, I assume your children receive SSDI benefits along with yours. You will need to disclose those benefits in connection with the modification you are seeking. If you know what your ex is earning, run some child support guidelines calculators to see if it is even worth opening this can of worms.

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