Sunday, December 14, 2014

Child support agreements need court approval

seeking approval from a court. A recent case, Zizza v. Zizza, from the Massachusetts Appellate Division (Oct. 27, 2014) is an example of the problems created when parents make an agreement without judicial approval.

In the Zizza case, the parties, after a foreign divorce, entered into a private agreement regarding property division, child custody, visitation, and child support. The agreement also had a clause that stated that the agreement could not be be modified by any court. This agreement eventually resulted in litigation in Massachusetts District Court with the court ordering a modification of the child support obligation. On appeal, the Appellate Division upheld the modification of child support. The court added a comment which explained that the Massachusetts Legislature has declared that it is against public policy to make an agreement that prevents the courts from changing child support obligations.

If you are about to make an agreement for child support you should consult a lawyer who is experienced in family law to make sure you don't fall into a child support trap.



Saturday, December 6, 2014

How do you probate an estate in Massachusetts when you can't get a death certificate?

Sometimes people die under circumstances where their body can't be found or can't be reached. Years ago I probated the estate of a man who sailed his boat into a hurricane and was never found. A few years ago there was a story in the news of a man in Florida who fell into a sinkhole and they didn't recover his body. A person can die in the military in a combat zone and his body may not be recovered. In all of these situations no death certificate will issue. Contrary to popular belief, an estate can still be filed.

Most estates in Massachusetts are filed in court with a copy of the death certificate. The death certificate is used to prove the death but it is not the only way death can be proved. The uniform probate code allows death to be proved by other means. If there is an official report such as from the police, coast guard, or army, then the official report can be used to prove the death. Even without an official report, witnesses can give testimony to prove that the person is dead.

In all of these situations, there is evidence that the person died. Witnesses saw the event that killed the person or they saw the body. It is different if the person just disappears and is never heard from again. Merely disappearing does not mean the person has died. In this situation, the family may have to wait five years before they can seek a declaration of death.


If you are in the unfortunate situation of knowing that a relative has died but no death certificate has issued, then you should consult an attorney who can probate the estate and prove the death without a death certificate.

Sunday, November 30, 2014

Can a physically disabled adult child receive child support in Massachusetts?

Recently, the Massachusetts Appeals Court ruled in the case of Vaida v. Vaida, Mass. App. Ct. No. 13–P–1827 (November 6, 2014) that a father did not have to pay child support for his adult physically disabled child. At first glance, this case seems to establish that a physically disabled child can't collect child support once the child reaches age 23. A closer examination convinces me that this case should not be considered precedent.

In Vaida, the child was a quadriplegic as a result of reckless conduct of the father. The father had been sued and settled the case for 3.5 million dollars. A settlement agreement and releases were executed. The prior settlement is a barrier to collecting child support from the father. Will the result be the same if there is no prior settlement?

Massachusetts allows child support to be collected for an adult child that is under a mental disability and has a court appointed guardian. Feinberg v. Diamant, 378 Mass. 131 (1979) and Eccleston v. Bankosky, 438 Mass. 428 (2003). With both mentally disabled children and physically disabled children the children need to be supported by others. In both cases, the children are unable to earn sufficient money to support themselves. The children must be supported by either the parents or government. If the parents have the ability to support the adult children, then they should do so instead of having taxpayers paying for the care of the children. I see no logical reason for parents of mentally disabled children to pay child support but not parents of physically disabled children.

There is a legal maxim that states “bad facts make bad law.” The Vaida case contains bad facts of the prior settlement. Hopefully, the next time that a case with this issue is litigated the courts will give the question a fresh look and not rely on the Vaida case. If you have a case involving an adult disabled child you should consult an experienced family law attorney.




Sunday, November 23, 2014

Does Massachusetts have a remedy for revenge porn?

For many people, sending a naked picture of yourself to someone is an act of commitment. It shows the degree of affection and trust by sending a picture showing oneself in their most vulnerable exposure. Yet this act of trust can become a nightmare if this picture is posted on the internet. A posting of this nature is called “revenge porn.” It frequently occurs when the relationship terminates. Not only can a posting of this nature cause emotional distress, it can also cause financial harm as it can effect employment and future relationships. Wikipedia definesrevenge porn as sexually explicit media that is publicly shared online without the consent of the pictured individual.” It includes selfies showing a person naked as well as explicit pictures of sexual conduct.

The best way to prevent revenge porn is to not create explicit pictures of yourself. If the relationship that is terminating is a marriage, then the parties may be able to obtain a court order prohibiting distribution of pictures. I have named such orders as “sexting restraining orders” and routinely include such language in my divorces. However, most people who are concerned with revenge porn are in the horrible position of trying to take action once a posting has occurred.

Some states have created laws that impose criminal penalties for revenge porn. Massachusetts has not created any law, civil or criminal, that specifically addresses revenge porn. Instead, a victim of revenge porn, must look to other remedies after their picture appears on the internet.

A civil lawsuit against the person who posted the pictures for damages can be filed. Such a suit can seek damages for intentional infliction of emotional distress or violation of a right of privacy. However, such a lawsuit can only result in a money award against the person who posted the information. If that person has no assets or files bankruptcy, the judgment may result in no recovery of money. A better way to proceed is to sue the web site that hosts the offending pictures.

Congress created broad protections for web site operators in the Communications Decency Act. However, web site operators are not protected against copyright violations. Under federal copyright law, a picture is the property of the person who created or took the picture. A selfie remains the property of the person who took the picture and not the person who received the picture in a text message. If a selfie appears on a web site, the web site operator can be sued to remove the picture as a violation of copyright law. Unless new laws are passed, this may be the only way to force the removal of the picture.

If you want to prevent revenge porn or find yourself the victim of revenge porn you should consult a lawyer as soon as possible to limit the damage.





Saturday, November 1, 2014

In Massachusetts, the odor of marijuana is the same as the odor of alcohol.

In 2008 Massachusetts decriminalized possession of one ounce or less of marijuana. Possession of more than one ounce is still a crime. Needless to say, it is not an unusual occurance for police to encounter automobiles with the smell of marijuana. In the past, the smell of marijuana was basis for a full search of the automobile and the occupants.

Two cases in Massachusetts make it clear that the odor of marijuana, burnt or fresh, by itself, does not constitute probable cause to search the car. In Commonwealth v.Cruz, 459 Mass. 459 (2011), the court held that the odor of burnt marijuana could not be the basis of a search of a car. More recently, in Commonwealth v. Craan, 469Mass. 24 (2014), the court reached the same result for fresh marijuana. Since possession of less than an ounce of marijuana is not a crime and smoking marijuana is not a crime, then the odor of marijuana does not mean that a crime is or has been committed under state law. Mere possession of small amounts of marijuana is still a federal crime but Massachusetts police officers are not permitted to search for evidence of this federal crime since the equivalent crime was decriminalized in Massachusetts.

Both decisions indicate that the smell of marjuana, by itself, does not mean that a crime has been committed. However, operating a motor vehicle under the influence of marijuana is a crime in Massachusetts just as operating under the influence of alcohol is a crime. The odor of marijuana is now equivalent to the odor of alcohol.

If a police officer stops a car and smells alcohol, this does not mean a crime has been committed. However, if the police officer detects symptoms of impairment along with the odor of alcohol, then the police officer may have probable cause to believe that a crime has been committed. If a driver has slurred speech, glassy eyes, exhibited irregular driving, or other symptoms of impairment, coupled with the odor of alchol or marijuana, then the officer may have reason to believe that the crime of operating under the influence occurred. In Massachusetts the odor or alcohol and the odor of marijuana are not treated the same. Odor, by itself, is not a reason to search a car. The odor with some indication of impaired driving can be sufficient reasons to search a car.

Any person who is arrested after a police officer smells marijuana and then searches a car should contact an attorney immediately.






Saturday, October 18, 2014

Is sexting naked pictures distribution of pornography?

From time to time I hear stories of the prosecution of teenagers for possession and distribution of child pornography as a result of sending or re-sending pictures through text messaging. Typically, these stories involve a young teenager who takes a naked “selfie” and then texts it to a friend. The friend then sends it to a lot of friends with the result that school officials hear of the distribution of the picture. The police get notified and arrests are made for possession and distribution of child pornography. So, are naked selfies child pornography? Can a person be arrested for texting these naked pictures?

In most cases, naked pictures of one self or “selfies” are not pornography. Even full frontal nudity pictures of young children and young teenagers are probably not pornography. In other words, in order to be considered pornographic, there must be more than just nudity. It doesn't matter if it is a boy or a girl, full nudity or partial nudity, there must be more than nudity to make the picture pornographic.
Since 1973 the United States has had one basic definition of obscenity (which includes pornography):
"(a) whether the 'average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest,
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."  M
iller v. California, 413 U.S. 15 (1973),
Legal disputes over selfies taken by children usually focus on the second element of depiction in a patently offensive way of sexual conduct. Naked selfies taken by teenagers are usually pictures of the teenager alone. No other person is in the picture. While some selfies could involve more than mere nudity, the vast majority of these pictures are just nude pictures. In a recent case in Massachusetts, the Court looked at this issue in the context of a convicted sex offender who possessed a number of pictures of naked children while he was in prison. Commonwealth v. Rex, No. SJC–11480 (July 9, 2014). The court found that merely naked pictures cannot be considered pornography. There must be more. Even in the context of a convicted sex offender in prison, nude pictures were not considered obscene. The Court describe six factors to consider to determine if the pictures could be considered pornographic:
1) whether the focal point of the visual depiction is on the child's genitalia or pubic area;
2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
4) whether the child is fully or partially clothed, or nude;
5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; [and]
6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.” The Court took these factors from a prior case: United States v. Dost, 636 F.Supp. 828, 832 (S.D .Cal.1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir.), cert. denied, 484 U.S. 856 (1987).

Nude selfies, without something in addition to the nudity, cannot be considered obscene or pornographic. Texting pictures of this type can not be considered distribution of child pornography. Possession of these pictures on a cell phone or computer can not be the basis for a criminal prosecution.
Hopefully this article will not encourage anybody to take naked pictures of themselves and to text them to others. It is a bad idea and hopefully recent stories of the leaking of naked pictures of celebrities from hackers should be a deterent to people. However, if someone is approached by the police for sending or receiving naked pictures, then they should consult an attorney who can advice them on the laws concerning pornography. It is better to have an attorney intervene and maybe stop a prosecution than having a prosecution started, published in newspapers, and then dismissed. Consulting an attorney quickly may prevent injury through stories in local media.




Sunday, September 21, 2014

What is the legal residence of a child of divorced parents?

Many people who get divorced live in different towns from their ex-spouse. They will sometimes choose between the two school systems and send their children to the better school. This means that the better school system will have more students and incur more costs. If a child of divorced parents requires additional services due to special needs, the cost can be substantial. As a result, many school systems try to exclude some students under the argument that they don't reside in the town where they attend school.

According to the law, adults are allowed one domicile or legal residence. Domicile is the place where a person intends to permenently reside. There is a long history of case law that sets forth rules to , determine the residency of adults. The law is much simpler as it applies to children: Children have the domicile of their parents. If their parents don't live together then children can have two domiciles. If the parents are divorced and the parents have joint legal custody then children will have two domiciles. This is true even if they never sleep at one parent's home.

In a recent case, the Town of Wayland formulated a rule to determine if children of divorced parents can attend school in Wayland.  Ames v. Town of Wayland, Middlesex Superior Court (No. 14-6717) (August 13, 2014.) The rule was called the “pillow count” rule and required children to sleep in Wayland for at least three out of five nights. When this rule resulted in a child of divorced parents becoming excluded from the Wayland schools, the child's parents appealed. A Superior Court Justice held that the child may attend the Wayland schools despite the fact that he lived in Wayland only three out of fourteen nights.

In Massachusetts, the Department of Education has always ruled that children can attend school in the school system where one of the parents reside and that the decision belongs to the parents and not the school system. In my practice, I have encountered this problem from time to time. I have found that schools generally drop their opposition when faced with the threat of litigation. Unfortunately, I found that parents have to hire attorneys to make the schools follow the law.


When a couple gets divorced and they have school age children, they should consider the choice of school system at the time of divorce. If you are getting divorced and have school age children, you should consult an experienced divorce attorney who understands the options of school choice.