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Chamber U - Legal
Article Archives
New Child Support Guidelines for 2009
by Francine Traiger-Poor, Esq.
Law Offices of Ernest H Hyde
In Massachusetts, the child support guidelines are used by the Probate Court to calculate child support whenever the parents of a child are no longer living together. This applies whether the parents of the children are married or unmarried, and in all temporary, permanent or final orders for current child support. In all orders where an order for child support is requested, a guideline worksheet must be filled out, regardless of the income of the parties.
On January 1, 2009, the guidelines will change. Although the amount of child support payed to the custodial parent will be different under the new guidelines, existing child support orders cannot be modified for three years unless there is a change in health insurance or a material change in circumstances.
There are, however, circumstances where the new guidelines will not apply. If any of the following circumstances exist, the court will be allowed to deviate from the guidelines: If,
There are many changes in the child support guidelines. The new guidelines specify how military pay, Social Security Disability Income and self-employment income should be accounted for. The new guidelines also recognize Massachusetts’ health insurance mandate and provide a larger benefit for health insurance premiums. The amount the non-custodial parent pays, in most cases, will be higher, but the custodial parent is no longer given a $20,000 credit. Below is a side-by-side comparison of the major changes in the new support guidelines.
For the full guideline text and worksheet go to: http://www.mass.gov/courts/childsupport/index.html
Small Necessities Leave Act
By Scott A. Lathrop, Lathrop Law Offices
Small Necessities Leave Act (M.G.L.c. 149, §52D)
b. Accompany a son or daughter to routine medical or dental appointments;
c. Accompany an elderly relative to routine medical or dental appointments or appointments for other professional services.
b. have actually worked for at least 1,250 hours during the previous 12 months. (Exempt employees are presumed to have worked 1,250 hours); and
c. be employed at a place where there are 50 or more employees within 75 miles.
4. If the necessity for the leave is foreseeable, the employee must provide the employer with not less than seven days' notice. If it is not foreseeable, the employee must provide as much notice as practicable.
5. An employer may require that the request for leave be supported by certification.
1. Under a Massachusetts statute recently enacted, certain employees are entitled to a total of 24 hours of leave during any 12 month period to:
a. Participate in school activities directly related to the educational advancement of a son or daughter;
2. To be eligible for such leave an employee must: a. have been employed for at least 12 months;
3. An employee may elect, or the employer may require the employee, to substitute accrued, but unused paid time off.
Fair Credit Reporting Act
By Scott A. Lathrop, Lathrop Law Offices
Fair Credit Reporting Act (15 U.S.C. §1681-1681t)
Your Payroll Tax Obligations
©uschamber.com
Take a moment to think back to the day you received your first real paycheck. If you're like many of us, you may recall experiencing some shock upon noticing that the check amount was much less than your actual salary.
A quick glance at the accompanying pay stub alerted you to the fact that your employer had reduced your pay by a number of deductions, the most significant of which were probably the amounts for federal and state taxes. As you're now aware, your employer was withholding from your check the various taxes that you, as a wage earner, had to pay.
Once you become an employer, you too will have to withhold taxes from your employees' pay and to deposit the withheld amounts with the appropriate tax agencies. Furthermore, as an employer, you yourself will also have to pay certain taxes based on the amounts you pay your workers.
Together, those taxes that you're required to withhold and those that you're directly required to pay comprise your payroll taxes. They may include federal, state, and perhaps local income taxes, Social Security and Medicare taxes, federal and state unemployment taxes, and, in some states, disability insurance taxes. And, regardless of whether you employ others, you can also expect to owe some payroll-type taxes on income that you receive from your business.
The key to controlling your payroll tax obligations is making all your payments when they're due, so you avoid getting hit with costly penalties.
Safety In Your Workplace
©uschamber.com
Why worry about safety? Simply because workplace accidents can destroy your business.
Thousands of Americans are killed each year in on-the-job accidents, and many more suffer work-related disabilities or contract occupational illnesses. Besides the incalculable cost of pain and grief, there are high monetary costs attached to workplace accidents. These costs can include the inability to meet your obligations to customers, wages paid to sick and disabled workers, wages paid to substitute employees, damaged equipment repair costs, insurance claims, workers' compensation, and administrative and recordkeeping costs.
In addition, the monetary penalties for failing to comply with federally mandated safety requirements alone could destroy your business. The Occupational Safety and Health Administration's minimum penalty for willful violations of safety rules that could result in death or serious physical harm is $5,000, with a maximum of $70,000. (OSHA is the federal agency that enforces federal safety requirements.)
Both humanitarian desires and economic good sense have encouraged employers to create and maintain safer and healthier working conditions. Where employers have not gone far enough, employees, unions, and government agencies have applied pressure for greater efforts.
Massachusetts Mechanics Liens
by Francine Traiger-Poor, Esq.
Law Offices of Ernest H Hyde
When you hire a contractor to do work on your home, he or she typically purchases materials for the job and hires subcontractors to do some of the work. No one would dispute that a homeowner should pay for goods or services provided to improve their home. What most homeowners don't know is that, even if you pay the contractor, if the subcontractors, workers or suppliers your contractor hires aren't paid, they can file what is called a Mechanic's Lien on your home.
A Mechanic's Lien is a claim against real estate made by someone who contributed to improvements on the real estate. If there is no Homestead on the property, a Mechanics Lien allows the party who filed the claim to force a sale of the real estate to pay the claim. The lien is recorded with the Registry of Deeds and will appear whenever there is a title search done on the property, such as when the homeowner attempts to sell or refinance.
The main contractor has a direct contract with the homeowner, so if he isn't paid, he can sue on the contract and record a mechanic's lien. But subcontractors, workers and suppliers don't have a contract with the homeowner. A problem occurs when the homeowner pays the main contractor for all or some of the work, but the main contractor doesn't pay the workers, subcontractors and materials suppliers that were hired to do portions of the job. If they are not paid, their only recourse is to file a Mechanic's Lien on the home.
A lien can result in many different problems for the homeowner. If the homeowner doesn't have a Homestead on the property, the lien holder can force a foreclosure. To avoid foreclosure, the homeowner may find herself paying twice for the same job. Until the matter is resolved, there will be a cloud on the title of the property, which can affect the homeowner's ability to borrow against, refinance, or sell the property. In Massachusetts, for a Mechanic's Lien to be valid the person filing the Mechanic's Lien must file a law suit against the homeowner as well. This means legal fees and court time for the homeowner as well.
Fortunately, there are ways to protect yourself from these liens by carefully selecting your contractor and managing your construction project. The first step, as with avoiding most legal problems, is do your homework. Investigate your main contractor before you sign a contract. Check with the Attorney General's office, the Better Business Bureau, the Board of Building Regulations and Standards, the Office of Consumer Affairs and the Chamber of Commerce to see if there are any complaints on file. If you're building from scratch, make sure your contractor is licensed with the Board of Building regulations and Standards as a construction supervisor. Hire only licensed contractors and check the contractor's license status on the State Board of Building Regulations and Standards.
Make sure your contractor hires only licensed subcontractors, and check their licenses, too. Check with your local courthouse to see if the main contractor has a history of litigation against him. Get a list of all subcontractors, laborers, and materials suppliers to be used by your main contractor and check with suppliers and workers about the payment history of the main contractor.
Always make sure to have a written contract and make sure it contains a schedule that demonstrates when specific construction activities will start and end, (such as the framing, sheet rock work, or painting) and the projected payments tied to the contract price of these activities. Make sure the contract identifies the subcontractors who will be performing these construction activities and the suppliers who are providing materials necessary for these activities.
One simple thing you can do to prevent a lien on your property is to issue joint checks. When the contractor presents a bill for materials or labor, compare it to the schedule of payments in your contract. Make sure that work was provided as described and then make out the check to both the contractor and the supplier, or the contractor and the subcontractor. Both parties will have to endorse the check, which will ensure that the subcontractors and suppliers get paid.
If a lien is placed on your home, consult an attorney immediately. There are a number of reasons a lien might be invalid; for example, the work was not completed or the supplies were not incorporated into the structure. Often, lien claims are invalid because the contractor, subcontractor or materials supplier has failed to meet the required time lines or rules for filing the claim. Remember, the best way to prevent a lien is to do your homework and carefully investigate the main contractor before the work begins.
Carbon Monoxide Alarms
by Francine Traiger-Poor, Esq.
Law Offices of Ernest H Hyde
Another new law in Massachusetts requires the installation of a carbon monoxide alarm in every building wholly or
partially occupied for residential purposes which burn fossil-fuel for heat or incorporate enclosed parking within its
structure. Massachusetts General Law Chapter 148 defines the new requirements. 527 C.M.R. 31.00 et. seq. further
defines the terms of the law. The law takes effect on March 31, 2006 for battery powered alarms and January 1, 2007 for
hardwired alarms.
An inspection similar to that for smoke alarms will be required by the fire department prior to sale of any residence
meeting that description after the dates mentioned above. Also, landlords a required to provide the alarms and make
sure they are working on an annual basis by checking or replacing the batteries or checking the alarm, in the case of
hardwired alarms.
The acceptable alarms must meet the following standard:
Installation of Alarms
- Battery Powered NFPA 720, 5.2.3
- AC Plug-in w/Battery Backup NFPA 720, 5.2.2.6
- AC Primary Source w/ Battery Backup NFPA 720, 5.2.2
- Low Voltage or Wireless Systems NFPA 720, 5.2.4
NFPA is National Fire Protection Association.
A single station must be installed on each level of each dwelling unit, including inhabitable portions
of basements, cellars, and attics, but not including crawl spaces. When mounting a unit on a level with a sleeping area,
the alarm must be within the immediate vicinity of the sleeping area, not to exceed 10 feet in any direction from any
bedroom door. In the alternative to placing an alarm on each level, a unit must be placed in the area containing the fossilfuel
burning equipment, and adjacent spaces, meeting the specs from UL 2034 and UL 2075 using an AC primary power
source with battery backup that meets the requirements of NFPA 720, 5.2.2 or a low voltage or wireless system.
Adjacent spaces are spaces immediately above or next to the area containing the fossil-fuel burning equipment.
Melanie's Law
by Francine Traiger-Poor, Esq.
Law Offices of Ernest H Hyde
There is a new law in Massachusetts that you may have heard about but do not really understand its significance. Melanie's Law was publicized as being a law that gets tougher with repeat offenders of operating under the influence of liquor or drugs. If that is all the new law did, I could keep this article really short. Melanie's Law goes beyond the repeat offender and may even create new criminals among us, YOU!
Massachusetts General Law, Chapter 90, Section 12 has four new subsections. The first deals with the hiring of
employees as motor vehicle operators who have no license to operate a motor vehicle. The operative word in the new
addition is, "knowingly." The question becomes one of did you know the operator did not have a license.
Further, this supposes that you check the license of an employee who is going to operate a motor vehicle, prior to hiring
her. It would seem reasonable that one would check for a license in such a case. If you fail to do it now, you are facing a
fine of up to $500 for the first violation and for the second violation up to $1,000 or up to 1 year in the house of correction.
Another subsection provides penalties for allowing the operation of a motor vehicle you own or have under your control
by someone who is unlicensed or who has had her license suspended. In this case, however, the penalty is $500 and 1
year in the house of correction, rather than up to $500 and not up to 1 year in the house of correction.
Other changes regarding operating a motor vehicle under the influence of liquor or drugs (OUI), involve enhanced license
suspensions for breath test refusal and repeat OUI offenders. To start, the prior law allowed for a fifteen day temporary
license when police took the driver's license after an OUI arrest. This no longer exists. Refusal of breath tests now
carry significant suspensions. On your first refusal, a 180 day loss of license is imposed. Then things get tougher. A
second offender’s refusal or a refusal by a driver under the age of 21, results in a 3 year suspension, a third
offender's refusal gets a 5 year suspension and a fourth timer gets a lifetime suspension, this is not an error, it is
truly a lifetime suspension.
The penalties for OUI also changed. A first offender penalty stayed the same. The second offender gets not less than 60
days and not more than 2 ½ years in the house of correction. Of the 60 days, 30 days must be served. She also gets a
suspended license for 2 years. This suspension is stacked on top of the suspension for refusing a breath test, if
applicable.
The third time offender gets 180 days, 150 to serve, fourth gets 2 years, mandatory 1 year to serve. All repeat offenders
get a new device called a ignition interlocking device. In short, the car cannot be started unless the operator blows into
this device and it registers .02 percent alcohol or less. This is the equivalent to roughly one drink. Anything more than
that level and the car will not start. After the vehicle starts random rolling tests will be given. Failure of two or more of
these tests in a 30 day period results in a lockout or engine not starting at the next attempt and can result in a 10 year
loss of license up to a lifetime loss.
The legislature put real teeth in this law after many significant changes over the years. Beware!
Basic Bankruptcy Overview
By Thomas A. Gibbons, Attorney at Law and Chamber Corporate Gold Sponsor
What do you think of when you hear the word bankruptcy? To some debtors who are burdened with such high debt that they have to choose between paying credit card debts and paying for food and rent, the word brings to mind a life preserver, to some lenders and collection agencies, bankruptcy is a dirty word that they hope not to hear,
In actuality, bankruptcy is something that can benefit both debtors and creditors in situations where a debtor is so far in debt, that only the order brought by the bankruptcy laws can put a defaulting debtor and a collecting creditor back on track to a final resolution of a bad situation. The catch phrase used to sum up the purpose and goal of bankruptcy is "fresh start".
For a number of reasons, including health, family or professional difficulties, and/or bad financial decision making, some people find themselves in such financial difficulty that there proceeding any further against the debtor on most matters, without first seeking relief from the Bankruptcy Court. In practice, this means creditors cannot start or continue collection activities, landlords cannot start or continue eviction proceedings, and mortgage holders cannot start or continue foreclosure proceedings, without seeking the permission of the Bankruptcy Court. The automatic stay brings the order mentioned earlier to the debtor's situation.
The debtor is given the breathing room he of she has been lacking for some time, and the creditors are given the comfort of knowing that if there is any money to be distributed to creditors, they will get a portion of it without trying to beat all other creditors to the funds. Creditors will be required, however, to file a proof of claim setting forth the amount owed to them and identifying whether the debt is secured, unsecured, or entitled to some priority.
Upon the filing of the petition, a Bankruptcy Trustee is appointed by the U.S. Trustee's office, and a meeting of creditors is scheduled. The Trustee is responsible for conducting the meeting of creditors, also referred to as the 341meeting, which is a reference to the section of the Bankruptcy Code, which provides for the meeting.
The Trustee is responsible for making a determination of whether or not there is property of the debtor available for distribution to the creditors. If there is any property the Trustee liquidates those assets and distributes the proceeds to creditors in accordance with the priorities set forth in the Bankruptcy Code. If there are any funds to be distributed amongst the unsecured creditors that distribution will be made in equal proportions to the amount owed each unsecured creditor.
Upon completion of the Chapter 7 Bankruptcy, the debtor receives a discharge of all dischargeable debts, and is allowed to keep all assets that were claimed exempt as allowed by the Bankruptcy Code. As to secured creditors, the debtor must either reaffirm the debt, redeem the secured proper, or surrender the secured property.
To reaffirm the debt, the debtor and the secured creditor must file a reaffirmation agreement with the Bankruptcy Court. The reaffirmation agreement sets forth either the terms of the contract prior to the bankruptcy filing, or new terms, either of which will obligate the debtor to repayment terms which mil be enforceable after the discharge is granted.
The debtor also has the right to redeem the property by making a lump sum payment to the creditor and thereby is able to keep the secured property. Lastly, the debtor may surrender the secured property to the secured creditor and receive a discharge for any deficiency remaining after the secured creditor liquidates the property. Chapter 13 is used where the debtor has sufficient income to pay creditors some, but not all that is owed over a period of time not to exceed 60 months.
There are many similarities between the process of a Chapter 13 and a Chapter 7. A Chapter 13 is commenced by the filing of a petition by the debtor, which once filed activates the automatic stay provisions discussed earlier. A Chapter 13 Trustee is appointed and a 341 meeting is held. As in a Chapter 7 case, creditors in a Chapter 13 case must file a proof of claim. The biggest difference between the two chapters however, is that in a Chapter 13 bankruptcy, a plan for repayment is established, which, if followed through to completion, will result in the creditors receiving a portion of the debt owed to them, and the debtor receiving a discharge for the remainder of the debt. In addition, the debtor generally gets to keep all of his or her assets.
Having set forth this very general and brief overview of Chapter 7 and Chapter 13 bankruptcy, it is hoped that what mil be gained from the reading of this article is that the filing of a bankruptcy is not necessarily the worst thing that can happen to either a debtor or his or her creditors. It is very important, however, that whether you are a debtor or a creditor, your interests are represented in the bankruptcy proceeding by legal counsel familiar with the Bankruptcy Code and procedure.
Practical Pitfalls
By Attorney Nancy Catalini Chew, Law Offices of Nancy Catalini Chew
As an estate planning attorney, I counsel my clients about how best to protect their assets and achieve their goals in the event of the incapacity or death of themselves or a loved one. For my elder law clientele, we add the layer of discussing how long-term care needs will impact those assets and estate goals. In virtually every consultation I have, certain issues invariably arise which provide my clients with what Oprah Winfrey likes to call "A-ha moments". I have come to call them "practical pitfalls" because they are relevant and obvious for most people in normal circumstances, but remain dormant unless and until legal or financial professionals specializing in these areas are consulted. I would like to share a few key examples with you, but please keep in mind that these are very general in their explanation herein below and do not attempt to provide specific legal advice for any individual scenarios:
Most people with minor children (i.e., under age 18 in Massachusetts) do not realize how easily their children could fall into the DSS system. Specifically, if you are in an accident or you die, rendering you incapable of the daily care of those children, they could very easily be placed in DSS, even if you have a Guardian nominated in your Will. Why? Well, if you are only injured, your Will is not invoked, and if you are not competent to name a temporary guardian due to your impairment, the Court will not infer an agent into that situation. Accordingly, the children would become part of the DSS system. Even if you do pass away, invoking your Will, the Guardians named therein take approximately 60 days to be made permanent by the Court-assuming no other family members contest, which would lengthen that timeframe-during which time someone needs to have care and custody. How do you eliminate this possible interference by DSS? Execute a "Massachusetts Emergency Guardianship Proxy" with your attorney to name temporary guardians, thereby providing you with the peace-of-mind of knowing that an agent of your personal choosing will have custody of your minor children in these situations.
Another "practical pitfall" arises when married couples assume that by holding their assets jointly they have avoided all future legal issues. Although it is true that your spouse's death would render you the sole legal owner of a jointly-held asset (such as your home) without probate, which is advantageous, incapacity of your spouse leaves you owning one-half of a house. The other one-half is legally "frozen" by the inability of your spouse to act in his or her own behalf. The easiest and most effective way to avoid this problem is to execute a comprehensive, detailed, and well-drafted "General Durable Power of Attorney". This document allows you to name agents (including your spouse) to manage your assets in the event of your incapacity. To overlook this document leaves you exposed to Court action, which is not to your advantage. Once executed, it should be updated every three or four years to avoid it being rejected as too old.
A final example for thought and edification is for non-married couples (co-habitating opposite and same-sex couples) as well as relationships involving non-mutual children. To fail to execute and keep current legal documents in these situations is utter folly for all involved. If there are children involved with non-married parents or where only one of the couple is the legal parent, custody and financial obligations are inherently problematic. In addition, there are no imputed legal rights between non-married couples, and none of the protections offered thereby are in place unless specifically invoked by legal documents. Medical decision-making, financial authority, burial plans, organ donation post-mortem, taxes and benefits…the list is lengthy and extensive in scope and magnitude. It is absolutely imperative that if you are in one of these situations you review with counsel all of the possible ramifications and plan for them. Too many people ignore these issues until they begin to play-out, at which time it is too late for proactive steps and there are always unpleasant surprises.
In short, if you are operating under the all-too-common misconception that the law somehow will provide for your family's needs in resolving the above-mentioned issues when they arise, and that you need not be proactive to protect and preserve your goals and desires, please know that this is NOT the case. The law is there to protect you, but where it remains silent-such as with respect to the examples listed above-no clear and easy answer surfaces to magically capture your wishes. In fact, it really foretells lengthy and expensive legal action in civil court. The best way to avoid all of this is to educate yourself, meet with a competent specialist, and (à la the famous slogan) just do it!
A Long Ride To Court
By Attorney Christopher T. Lilly
President, Northern Middlesex Bar Association
The ability of our local residents to access the Probate Court in Middlesex County has become more limited. Recently, the Middlesex Probate and Family Court announced that it will cut back on sessions it will be holding in its satellite locations in Concord, Marlborough and Lowell. Henceforth, only eight sessions per month will be held in Concord and in Marlborough; the Probate Court in Lowell will be sitting every other Friday. Many local attorneys look at this development as a major step toward an eventual closing of the satellite sessions.
Traditionally, the satellite sessions have provided a convenient venue for litigants and attorneys to have matters heard closer to home. All matters are filed at the main courthouse in Cambridge. However, hearings and other aspects of a case would be scheduled in Concord, or Lowell or Marlborough by request or based upon the residence of the litigant. For residents in northern and western Middlesex County, the satellite sessions provided meaningful and expedient access to the Probate Court, enabling such residents to redress grievances in the morning and still salvage a portion of their workday.
By contrast, the Cambridge Probate Courthouse has been compared to the emergency ward of a major hospital. Litigants appearing to seek resolution of an issue will normally find themselves spending the majority of the day in court by the time they check in, see family services, draft the appropriate documents and finally get before the judge. The waiting around is usually the worst part.
Cambridge sits at the far eastern end of Middlesex County in the midst of a more concentrated population. According to the U.S. Census Bureau, Middlesex County has a total area of 848 square miles. As of the year 2000, the county had a population of 1,465,396 people, 561,220 households, and 360,864 families. The County government was abolished in 1997.
According to Mapquest.com, a trip to the Cambridge Courthouse from the town hall in Ashby will run about one hour and seventeen minutes. However, anyone negotiating route 2 (and the Concord Rotary) during morning rush hour, in order to be in Cambridge for 9:00 a.m., knows to add at least another hour to that time for traffic.
Historically, Judge Edward M. Ginsburg sat almost exclusively in Concord. During his tenure, the Concord Probate Court calendar was run efficiently and effectively. As a single judge presiding over the entirety (frequently) of the numerous cases that went through the system, Judge Ginsburg was able to keep track of the cases, litigants and lawyers. Deadlines and rules were enforced, and justice was administered consistently. The consistency and predictability of the Judge's decisions were a benefit to attorneys practicing before him. Judge Ginsburg retired in the fall of 2002. Although judges filled the position left by his vacancy, the Ginsburg System was ultimately undone by the individual calendar System.
In January 2004, the Middlesex Probate Court implemented the individual calendar system, as a means of enabling judges to keep better track of the cases and litigants appearing before them. Too frequently, under the old system, parties to a complex divorce would appear before one judge for one aspect of a case (usually in Cambridge) and, at a subsequent appearance, would have to reorient another judge to the intricacies of the situation or the complexities of some of the issues. The individual calendar system, it was believed, would create accountability between the judges and the parties and their attorneys. A judge would be assigned the case as soon as it was filed; that judge would then hear every aspect of the case. As a consequence, the judge would be better able to track the progress of the case and the situation of the parties. Forum shopping would be discouraged, and the parties could expect the consistency and predictability of a single judge handling all aspects of their case. Ironically, this was the kind of accountability with cases that had been practiced in Concord with the Ginsburg System.
A problem quickly surfaced, particularly for those of us at this end of the county: the parties had to chase after the assigned judge to have the matter heard. Although judges rotated through the satellite sessions, their appearances in those sessions were few and far between, approximately one week out of every eight weeks in a given session. More likely than not, the parties would have to schedule a matter in Cambridge to have the matter heard more expeditiously. As a result, the satellite sessions have become underutilized. They have been labeled "inefficient," in that those matters which are scheduled in the satellites are sometimes insufficient to occupy the Court for the entire day. The cutting back of those sessions is the result.
Judge Robert W. Langlois was appointed Acting First Justice of the Middlesex Probate and Family Court in late 2004. Judge Langlois has made it his mission to make the Probate Court more efficient. The Judge has identified certain problems within the Court's operation and has endeavored to correct, or at least address those problems. He has begun work with Register of Probate, John R. Buonomo, to make the court more user-friendly and to address such issues as missing files and lost mail.
Further, the Court has instituted other changes designed to move cases more quickly through the system. Scheduling will become more efficient with the appointment of scheduling clerks for each judge. Every case coming before a judge on a motion or a review will receive a return date. The intent is to move the case more quickly to trial and, consequently, to foster speedier resolutions. Pretrial conferences will be staggered at different times throughout the day, rather than scheduled all together at 9 a.m., allowing more individualized attention to each case and easing the scheduling demands of the parties and lawyers.
However, one of the problems identified by Judge Langlois is the inefficiency perceived in the satellite sessions. According to Judge Langlois, the satellite sessions are being grossly underutilized and judges have not had enough work to provide a full daily workload. This is a waste of judicial resources. Consequently, on January 31, 2005, Judge Langlois published a reduced schedule for the Concord and Marlborough sessions, cutting back each session to eight days per month. During each of those dates, a different judge will sit in that session. Original complaints for contempt will be returnable to Cambridge only, but subsequent dates, such as review dates or continuances, can be scheduled in the satellite sessions. Further, certain uncontested matters can be scheduled before any judge in any session upon request.
For those of us in the northern and western part of the county, this amounts to a great curtailing of access to the Court. A good deal of the fault, everyone seems to agree, lies with the individual calendar system. In fact, the cutbacks can be said to formalize what has already come to exist as a natural consequence of the individual calendar system: fewer matters are being scheduled in the satellite sessions. Because a particular judge would not be scheduled to sit in Concord or Marlborough for a significant time and an earlier date would be available in Cambridge, parties frequently chose the earlier date. As a consequence, the Concord and Marlborough sessions had already become less accessible.
However, if we want the satellite sessions to continue, we need to use them. The use of these sessions is clearly being monitored, and we cannot let our access to these sessions slip further away. We have an opportunity to show that we truly want these sessions to continue by requesting that our matters be heard there whenever possible. We need to utilize the sessions now more than ever.
FMLA and Maternity Leave
By Scott A Lathrop
Scott A Lathrop & Associates, Groton
A few years ago Congress, with much fanfare, passed a law called the Family and Medical Leave Act. This law was touted as guaranteeing to certain employee leaves of absences for the birth or placement of a child, or because of the serious health condition of the employee, the employee's spouse, child or parent. This law was envisioned as a break-through law. However, from the employee point of view, it has its limitations, including the fact that it only applies to employers with 50 or more employees.
Massachusetts on the other hand, being the state that it is, has uniquely provided for maternity leaves for many years. Massachusetts employers with six or more employees must provide an eight week maternity leave to female employees for the purpose of giving birth or adopting a child under the age of 18 (or under the age of 23 if the child is mentally or physically disabled.)
To be eligible for the leave the employee must:
The period of the maternity leave need not be included in the computation of benefits and seniority, and the employer need not provide for the cost of any benefits, plans or programs during the period of maternity leave unless it so provides for all employees on leave of absence.
Upon her return the employee should be restored to her previous position, or a similar position with the same status, pay and seniority as of the date the leave began. An employer is not required to restore the employee if other employees of equal seniority and status in the same or similar position have been laid off during the period of maternity leave.
Dividing Marital Property
By Francine Traiger Poor
Borrowed from Ernest H. Hyde,
Law Offices of Ernest H. Hyde, Shirley
Almost everything you and your spouse acquire during and, perhaps, before your marriage, is marital property. This includes the family home, cars, and furnishings as well as retirement accounts, pension and profit sharing plans. Since Massachusetts is an “equitable distribution” state, property acquired during the marriage is jointly owned by both spouses and, instead of a strict fifty-fifty split of the marital property, the courts will look at the financial situation that each spouse will be in after the marriage ends. This means that the judge can do whatever he or she thinks is fair. For example, the judge can order that the home not be sold so a spouse and children may live there for a period of time or that the home (or other property) be sold and the cash divided between the parties.
There are certain factors the court must consider when dividing marital assets. These are:
The courts may also consider the contributions each spouse has made to the acquisition or growth of the marital property and the contributions each spouse made as a homemaker.
One way to alter the division of marital property is through a premarital, also known as an ante-nuptial or a post marital, agreement. An ante-nuptial is a legal contract between two people who are about to be married. The prospective husband and wife may agree on the rights each will have to the property that they bring into the marriage or acquire during the marriage, including support and inheritance rights.
A post marital agreement, sometimes known as a Marital Settlement Agreement, is a similar contract between a husband and wife, but is entered into after they are married.
Any agreement must meet certain criteria before it will be held valid. It must be in writing and signed by both parties. There must be a full disclosure of all assets, income and debts of each spouse and must be fair and reasonable both at the time it’s signed and the time it goes into effect. It also helps if the both parties have their own lawyers look over the agreement and to have it signed well in advance of the wedding date.
Although an ante-nuptial or post marital agreement is one contract you hope you’ll never need to enforce, with the divorce rate at approximately 50%, it certainly makes sense to plan ahead. A fair, equitable division of marital property can help relieve one of the stresses of a very difficult time.
Holiday Shopping - What You Should Know
By Francine Traiger Poor
You may contact Attorney Hyde at
If you do your shopping in Massachusetts for the holidays, you should be aware of some simple but important rights you have as a consumer. It may go without saying that items you purchase should be clearly marked with their price. The price need not necessarily be on the item itself, but should be near it or should in some other clear way indicate its price. Whether the price is on the item or not, be sure to check your cash register tapes after buying the gift but before leaving the store. The computerized registers are not always updated with the proper pricing information which can cost you more than you expected to pay.
Know what your rights are relative to returns, refunds and cancellations. When shopping for Christmas gifts, be sure that you understand the store’s return and refund policy. By law, the store must clearly and conspicuously disclose to you, prior to consummation of a transaction, the exact nature and extent of the store’s refund, return or cancellation policy. If they fail to so inform you or they do not perform any promises made to you regarding their policy or they misrepresent their policy in some way, they are subject to three times the amount of your damages under Massachusetts General Law Chapter 93A, since the attorney general has determined these failures to be deceptive practices.
You will typically find that the store has posted a large sign at their sale register or their customer service desk or some other conspicuous place in the store, stating their return and refund policy. If you do not see such a poster, ask the clerk to explain the policy to you prior to purchasing the goods. It could save you time and money in the future should you want to return the goods for a refund. It is best to know the policy rather than be surprised at a later date or be required to file a small claims complaint to get your refund.
Lastly, manage your credit cards. Some credit card companies are charging as much a 26.99% interest on outstanding balances. Using this kind of credit sort of defeats the purpose of all your efforts in finding a bargain. If you find a bargain of, say, 20% off the regular price and then pay the minimum payment each month on the credit card, you may pay a lot more for the gift than you intended.
Generally speaking, if you cannot pay the full balance of your credit card each month when you receive it, you probably cannot afford the gifts you are buying. Save yourself the trouble of filing for bankruptcy or putting up with annoying phone calls from the credit card company or collection agencies by spending only what you can afford.
Hiring a Lawyer: Remember to do your homework
by Beth Gaudio
Although no one likes to think about it, in the course of your business, there probably will come a time when you will need the assistance of a lawyer. Whether it is for a complex contract or a real estate deal, hiring a lawyer can be a complicated process that leads to many questions. The answers to the questions below will assist you in hiring a lawyer that best represents your needs.
Question:
Answer:
Answer:
In your interviews, be sure to bring the general points of your case and all the names, addresses and phone numbers of everyone associated with your case. At a minimum, you should ask the following questions: How long have you been in practice? How many cases like this have you handled? Do you typically go to trial or are most of your cases settled out of court? How much do you estimate this case will cost? How long do you estimate this type of case will take to either settle or go to court?
If you don’t understand something the lawyer is saying, ask for clarification. In order for you to feel comfortable with your lawyer, it is crucial that you understand what he/she is telling you. Don’t let the lawyer overwhelm you with legal jargon.
Finally, be sure you understand the terms of your agreement with the lawyer. Don’t sign anything until you have time to review it and consider other offers. Changing lawyers is a last resort that you should avoid at all costs, so make sure you are comfortable with the lawyer you select.
Answer:
Costly Landlord Mistakes
by Francine Traiger-Poor, Esq.
If you are like many small property owners, you've probably assumed that there was nothing to renting an apartment
except finding a tenant and collecting the rent. Unfortunately, there's a lot more to being a landlord and what you
don't know can hurt you.
Screen Your Tenants
It's hard to evict tenants once they are in the premises, even for non-payment of rent. It's much easier not to rent to a
problem tenant in the first place. Some simple research can help you to avoid future problems.
Have each tenant fill out an application, a simple form is available from the Greater Boston Real Estate Board/Rental
Housing Association, (go to http://www.gbreb.com/rha/ for more information). Be careful not to ask for irrelevant or
unlawful information, such as race, religion, age, or sex, which could give rise to a discrimination claim. If you have
access to a credit reporting agency, do a credit check and speak with the present and previous landlords and work
references. Ask specific questions. Did the tenant pay all rent due? On time? Did they keep the apartment clean?
Put it in Writing
With a written rental agreement, you can spell out the terms of the tenancy and who is responsible for what. Another
reason for using a written lease or tenancy-at-will agreement is to take advantage of specific clauses which define the
terms of the tenancy. You can restrict the tenant's right to sublet and right to bring in new occupants without your
approval. The tenant also has the right to have pets unless there is a written agreement to the contrary. If you want the
right to a key, and to restrict the tenant's right to change locks, you must reserve that right in a written agreement. A
written agreement also allows you to require the tenant to pay for heat and hot water.
Other advantages of a written rental agreement or lease are clauses allowing you to collect attorney's fees in the
event of an eviction, provide for the method of service should legal action become necessary and define the amount of
notice you have to give in the event you choose to evict. If you're using a standard lease form or rental
agreement, read it over carefully to make sure you understand what you're signing. If you need to make changes,
make sure that all changes are made on all copies of the lease. You and the tenant should both initial each change. And
make sure that all paperwork is complete before you give the tenants the keys and let them move in.
Understand Your Responsibilities
The area where most landlords run into problems is with the tenant's security deposit and last month's
rent. Since the rules are different for security deposits and last months rent deposits, it is important for you to make it
clear as to which kind of deposit you are taking. If the tenant pays by personal check, be sure the description of the
payment in the "memo" section of the check is correct. If the tenant pays in any other way, be sure to give a receipt
which includes an accurate description of the payment. For a security deposit, you must:
This must be followed exactly, or you may have to pay treble damages plus attorneys fees.
For the last month's rent, you must give the tenant a receipt that states:
You must pay the tenant 5% interest yearly or notify the tenant that the interest may be deducted from the next rental
payment. You don't have to hold the last month's rent in an escrow account, but you may not deduct for damages to the
unit from the last month's rent. If you do use an escrow account for last month's rent, you may pay the tenant the amount
of interest you actually receive in the account, if it is less than 5%.
If you fail to comply with any of these requirements, the law allows the tenant to sue you for damages including return of
the deposit. For some violations, damages include three times the interest due or three times the amount of the deposit,
plus the tenant's attorney's fees.
Under current law, the security deposit provides very little protection against a tenant damaging the apartment. Almost
any damage will cost more than the deposit. If you try to keep any part of the deposit for damages, you can be almost
certain of a lawsuit from your tenant. And if the court disagrees with any part of the deduction, the tenant's award could
be trebled, and you will have to pay the tenant's attorney's fees. It's a lot cheaper and less aggravating to protect yourself
by carefully screening tenants.
Don't "Let it Slide"
Stay on top of late rent payments. Once a tenant at will (without a lease) is one week late on his or her payment, it is
time for a notice to remind them of their obligation to pay on time. If the tenant becomes one more week late after being
given the notice, it is time for a 14 day notice to quit. Allowing a tenant to become several months late in payment can be
disastrous financially. Many times the tenant will not be able to pay a large rent bill, requiring the landlord to spend
significant amounts of money to get paid.
Small Business Debt Collection
by Francine Traiger-Poor, Esq.
You do the work or provide the goods exactly as you were supposed to. Then you send out your invoice and wait patiently to be paid. And wait. And wait. Now what? You started your business to make a difference, to do what you love, to express your vision, not to become the bank of choice for your customers. Aggressive collection techniques may alienate a good customer, but not collecting could mean the end of your business.
You’re not alone. Recent OPEN Small Business Network Polls from American Express show accounts receivables is the top cash flow concern of small business owners. But there are ways to collect what you’re owed without turning into a full time bill collector. Here are some tips.
Plan ahead...
An ounce of prevention...
The contract should outline what work is to be done, who is responsible for payment and when payment is to be made. You should provide for interest on uncollected balances and a provision for attorney’s fees and court costs if a collection action becomes necessary. Once the customer signs it, make a copy for them and keep the original for yourself. A signed contract is a powerful tool if you have to use the courts to collect.
Don’t delay...
Be nice (at first)...
When all else fails...
Reluctant payers are often motivated by a
letter from legal counsel to call and make payment
arrangements. Sometimes the subtle threat of
having a letter from an attorney is enough to get a
delinquent account back on the straight and
narrow payment path.
If the letter doesn’t work, the legal system
may be your last resort. For debts under $2000,
small claims court is a good option and a court
order can be a powerful tool in collecting an
overdue debt. Although additional court costs are
involved in obtaining and enforcing a judgment, a
judgment will enable a constable to collect the
debt and will effect the debtor’s credit rating until
it’s paid in full. A judgment by the court can also
be used to attach any real estate owned by the
debtor. If the debt is greater than $2000, the case
must be brought in District or Superior Court, but
the same advantages apply.
Remember...
Avoiding an IRS Tax Audit - Tilting the Odds in Your Favor
by Phil Beram, Chief Tax Counsel and Director of Tax Policy
It's getting close to tax return filing time. While there is virtually no way to "audit-proof" your return, there are many things you can do to reduce the likelihood that it will be selected for examination-or make it easier to deal with if it is.
When preparing your tax return, make sure you're working with complete and accurate data. This includes information from your books and records, such as ledgers, journals, invoices, and receipts. Prior years' returns and worksheets are useful for comparison, as they may point to new or omitted items or to aberrations between years that may need to be verified, explained, or further explored.
Comparing the information in your return with national tax statistics may reveal the likelihood of drawing the IRS' attention due to deviation from averages, norms, or other data representative of your industry or return type. You can access these statistics at www.irs.gov/taxstats. This is not to say that if you have legitimate deductions you should not claim them for fear your return will stand out. However, when claiming those deductions, be sure that they are accurate in amount, have proper backup, and have appropriate descriptions.
When setting forth items that are unusual in amount or in nature, a few strategies may be helpful. Breaking down large items into components may draw less attention. Providing clear descriptions may also help the return get past the government's watchful eye. With a provocative item, it's helpful to attach explanatory statements, schedules, or supporting documentation. In such instances, the IRS may follow up with correspondence rather than arranging a face-to-face meeting. A live audit is far more dangerous than correspondence because of the likelihood that other issues will be raised.
If your substantiation for an item is lacking, don't feel that you need to forgo the deduction. If you're selected for an audit, the IRS auditor or agent is authorized to consider reconstruction of missing information. Reconstruction from available records-such as business mileage from calendared appointments, addresses, and automotive service receipts-is common. The best advice in these cases is to be reasonable. Your reasonableness, the accuracy of other items on your return, and the plausibility of the reconstruction will weigh heavily in determining how much latitude you receive from the IRS. The IRS may forgive missing receipts for some deductions as long as you have other documentation that supports sufficient details of the transactions.
Remember, when preparing your tax return, a little extra care can go a long way toward reducing or withstanding scrutiny from the IRS.
The material in this article should not be construed as tax or legal advice. If expert assistance is required, see a tax professional.
Borrowed from Ernest H. Hyde,
Law Offices of Ernest H. Hyde, Shirley
NFIB Legal Foundation
Where can I find a lawyer?
There are several places you can look to find legal counsel to help you with your problem.
Be wary of finding a lawyer through advertisements. Take caution with words such as “free” and “no charge.” The size of the advertisement has nothing to do with the quality of the lawyer.
Question:
How do I know which lawyer is right for me?
You should always interview two or three lawyers before making your final decision. You should be comfortable with the lawyer you are working with, and he/she should have the necessary skills to win your case.
Question:
Can I do anything to reduce my legal costs?
Yes, there are a number of ways you can keep your legal costs down.
NFIB provides this Web site for informational purposes only and it is not intended to provide legal services or legal assistance for individual cases. You should consult a lawyer to discuss your individual situation
Law Offices of Ernest H Hyde
Law Offices of Ernest H Hyde
Every small business should have a collection policy in place before the company begins selling its products or services, says Alice Bredin, a New York City based small business author and resident expert at American Express Small Business Exchange. The policy should outline credit terms and explain when and how a company will collect on overdue accounts. Even if you’re a one-person operation, having a policy will give you a timetable to properly follow up on overdue invoices and ensure that no delinquent accounts fall through the cracks.
Whenever credit is extended to a customer, make sure you have a contract in writing, and signed by the customer, before doing any work or
providing any product. The contract doesn’t have to be complicated, but it’s an essential step in protecting yourself if collection becomes a problem. Stay away from the “Do-it-Yourself” contract kits sold by some office supply stores, they may not comply with all state laws and probably contain clauses you don’t need or want.
When it comes to checking on late payments, act sooner rather than later. Delaying will only let problems fester and will actually decrease the odds of getting paid, says Sher, who offers a variety of debt collection services through his Birmingham, Ala. based company, AmSher Receivables Management. "Studies show that the chances of getting paid drop about 12 percent each month that a bill goes unpaid," he says. "That's 36 percent after three months."
The first step is to explore why the bill is late. It could be your client simply forgot. Provide a gentle reminder immediately following the due
date. If that doesn’t work, gradually increase assertiveness. While your first letter is positive and helpful, the third collection letter may show
concern for their situation.
If a customer declines to pay in spite of repeated prodding, it's time to find out what's really wrong. Usually there are two reasons for overdue bills, either the customer is dissatisfied with the product or service or is having financial problems. Since customer dissatisfaction should have been uncovered in a quick sales follow up call, chances are the customer either doesn't have the money to pay you or is less than responsible when it comes to paying his or her bills. That’s probably the time to bring in your attorney.
Spending too much time and resources on
account collection can be draining on your
operation. Law offices that work with debt
collection often do so for a percentage of what is
collected. The older a debt becomes, the less likely it is
that it will ever be collected. Once it appears that
collecting on an invoice is going to be a problem, turning
the debt over to a professional will save you time and
aggravation, as well as increasing your bottom line.
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