Categories
Divorce Massachusetts Child Support Massachusetts Divorce Massachusetts Uncontested Divorce Uncategorized Uncontested Divorce

Massachusetts Uncontested Divorce: The Best Divorce Money Can Buy

An Agreement in Principle

In Massachusetts, if a married couple seeks a divorce and the couple have come to an “agreement in principle” then they may obtain a Massachusetts uncontested divorce. In a Massachusetts uncontested divorce, unlike a contested divorce, the parties agree to the disposition of all assets and liabilities, as well as child support and alimony, when they file their Massachusetts divorce complaint. If any of these issues remain unresolved, then a Massachusetts contested divorce is warranted and the parties cannot file an uncontested Massachusetts divorce.

What is an “Agreement in Principle?”

An “agreement in principle” simply means that the parties have come to an agreement with respect to all the major issues of their divorce. This includes the division of both assets and liabilities, as well as agreements with respect to child support, child custody and alimony. If there are any disagreements on ANY of these issues, then the parties cannot obtain a Massachusetts uncontested divorce.

Retain An Attorney to Put the Verbal Agreement in Writing

The parties do not need to have anything in writing. The parties may retain an attorney to assist in drafting the party’s entire Separation Agreement. After the Massachusetts Divorce Agreement is put into writing, each party will have the opportunity to have the Separation Agreement reviewed by their own attorney, if desired.

No Attorneys Required, but it’s Helpful

However, there is no requirement that either party or both parties have counsel. It is necessary, however, that there is transparency, honesty, and that both parties understand exactly what they are agreeing to and signing. There is good faith from both parties in an uncontested Massachusetts Divorce.

It is suggested that at least one petitioner in a Massachusetts Uncontested Divorce obtain an attorney, as there is an enormous amount of paperwork to complete, and the process can be complicated for pro se litigants.

Attorney Anthony Rao has handled hundreds of Massachusetts Uncontested Divorces and is available at 617-953-0836 or via email at anthony@lawrao.com to discuss your questions regarding a Massachusetts Uncontesed Divorce. Our law firm provides flat-fee uncontested divorce packages for most Massachusetts uncontested divorces. Ask Attorney Rao how that works.

Categories
Massachusetts Alimony Massachusetts Divorce Massachusetts Prenuptial Agreement Uncategorized

Prenuptial Agreements in Massachusetts: A Simple Guide to Protecting Your Assets before Marriage

Massachusetts Family and Probate Court
“Money, it’s a gas. Grab that cash with both hands and make a stash” – Pink Floyd.

Divorce is Common & Costly

Divorce is common. In 2020, 41% of all first marriages ended in divorce. A divorce is often a huge financial hit to both the husband and the wife. Worse, children are always caught in the middle of an acrimonious divorce. A hotly contested divorce can last for years. A Massachusetts divorce that goes to trial can cost each litigant tens of thousands of dollars in legal fees & costs. After the litigation is over, the judgment of divorce will divide your assets and your liabilities. Each party has no say. The law and the judge decide. It is a horrible experience.

The Judge Decides, Not You.

After your assets and liabilities are divided, the court in its discretion may award alimony. In Massachusetts, alimony is dependent on numerous factors. One of the biggest factors is the length of marriage. For example, if you are married for 11 years, an alimony order could last for as long as 7 years. This award is given by the trial judge. The trial judge in Massachusetts Family and Probate court has enormous discretion.

Prenuptial Agreement: Control Your Money & Your Future

A Massachusetts Prenuptial Agreement grants both parties control over the division of their assets and liabilities in the event of a divorce. In Massachusetts, the parties can waive their rights to alimony with a prenuptial agreement. Also, Massachusetts now allows for post-nuptial agreements. This allows for parties to come together – after the marriage – to enter into a contract that describes the division of assets and liabilities.

Fair and Reasonable Agreement

The standards for a prenuptial agreement are fair & reasonable both at the time of the signing of the Massachusetts Prenuptial Agreement and at the time the Prenuptial Agreement is enforced, i.e., upon the divorce of the parties. The standard is not an unreasonable one. Both parties should have good faith in negotiations and be honest and transparent.

Attorneys Should Handle the Drafting and Negotiation of Prenuptial Agreements

In order for a Massachusetts Prenuptial Agreement to be enforced here are some of the requirements: 1. Both parties should have legal representation; 2. Both parties must have a complete and full disclosure of all assets and liabilities at the time of the execution of the Massachusetts Prenuptial Agreements; and 3. the Judge at the time of enforcement must determine the Prenuptial Agreement to be fair & reasonable both at the time of the signing of the Prenuptial Agreement and at the time of enforcement.

Income During the Marriage & Separate Property

One of the most important factors to consider when contemplating a Massachusetts Prenuptial Agreement is the definition of “Separate Property.” Meaning, what property will not be divisible upon a divorce. This can be very broad. In Massachusetts, you may define “Separate Property” to include income and property received during the marriage. In other words, all the income and property you obtain during your marriage is not divisible upon the divorce.

This protects both parties. In 2022, both parties have income. Both parties will have inheritances, cryptocurrency, NFTs, and much opportunity for financial gain during their marriage. The Massachusetts Prenuptial Agreement insures fairness for both parties.

If you are considering a Massachusetts Prenuptial Agreement, call Attorney Anthony Rao now at 617-953-0836. Attorney Rao has vast experience in drafting Massachusetts Prenuptial Agreements, including Prenuptial Agreements that protect income streams during the marriage, real and personal property, as well as Prenuptial Agreements that protect non-fungible tokens, and cryptocurrencies. www.lawrao.com

Anthony Rao, Esq.

Categories
2021 Massachusetts Child Support Guidelines 2021 Massachusetts Child Support Guidelines Worksheet Department of Revenue Divorce DOR/CSE Massachusetts Child Support Massachusetts Department of Revenue Child Support Enforcement Division Massachusetts Divorce Massachusetts DOR Modification of Child Support Orders

2021 Massachusetts Child Support Worksheet: A Tool to Calculate Child Support in Massachusetts as of October 4, 2021

The Massachusetts Child Support Guidelines are used by the Massachusetts Probate and Family Court to determine the amount of child support paid to the custodial parent from the noncustodial parent for the support and maintenance of the child. The guidelines are updated and reviewed by the Massachusetts Trial Court every four years to make appropriate adjustments based on numerous factors.

The quadrennial review by the Massachusetts Trial Court has been completed, and the new Massachusetts Child Support Guidelines are now to be used in all child support cases in Massachusetts. The new Massachusetts Child Support Guidelines take effect on October 4, 2021.

Preamble of the 2021 Massachusetts Child Support Guidelines

“These child support guidelines shall take effect on October 4, 2021, and shall be applied to all child support orders and judgments entered as of October 4, 2021. In recognition of the priority of the interests of the children of the Commonwealth, these guidelines are formulated to be used by all of the justices of the Trial Court. There shall be a rebuttable presumption that these guidelines apply in all cases establishing or modifying a child support order, regardless of whether the parents of the child are married or unmarried, the order is temporary or final, or the Court is deciding whether to approve an agreement for child support. There shall also be a rebuttable presumption that the amount of the child support order calculated under these guidelines is the appropriate amount of child support to be ordered. These guidelines are based on various considerations, including, but not limited to, each parent’s earnings, income, and other evidence of ability to pay. These guidelines are intended to be of assistance to attorneys and to parties in determining what level of payment would be expected given the relative income levels of the parties. In all cases where an order for child support may be established or modified, a guidelines worksheet must be filled out, regardless of the income of the parties.”

The Preamble to the 2021 Massachusetts Child Support Guidelines

2021 Massachusetts Child Support Calculator: A Tool to Determine the Amount of Child Support in Massachusetts

The actual 2021 Massachusetts Child Support Guidelines are a substantive, twenty-six page document that provides litigants, judges and attorneys a detailed overview of the child support law in Massachusetts. However, Massachusetts child support orders are actually calculated by using the “2021 Massachusetts Child Support Guidelines Worksheet.”

The Worksheet provides the parties with the child support order that is recommend by the 2021 Massachusetts Child Support Guidelines. The number that the worksheet produces is a “rebuttable presumption.” Meaning, the child support judge is presumed to order the Worksheet amount, but this presumption can be rebutted by numerous factors.

About the Author: Attorney Anthony Rao, Esq. is a practicing attorney in the Commonwealth of Massachusetts, and was admitted to the practice of law in 2006. As a former Child Support Enforcement Attorney for the Massachusetts Department of Revenue, Attorney Rao has handled thousands of Massachusetts Child Support Cases, and is available to discuss the 2021 Massachusetts Child Support Guidelines and the 2021 Massachusetts Child Support Guidelines Worksheet. He may be reached at 617-953-0836, or at Anthony@lawrao.com

Categories
Divorce Massachusetts Child Support Massachusetts Divorce Massachusetts Family and Probate Court Complaint for Contempt Massachusetts Uncontested Divorce Uncontested Divorce

The Uncontested Divorce: A Guide to the Massachusetts Uncontested Divorce Process

Uncontested Divorces: The Best Way To End The Unhappy Marriage

Over half of all marriages in the United States end in divorce. Divorces are usually acrimonious and extremely litigious. In Massachusetts, as an example, it is not uncommon for divorcing spouses to obtain divorce lawyers, as both spouses prepare for a long-fought court battle. Indeed, a contested divorce in the Commonwealth of Massachusetts often times will last years, and will cost both former spouses tens of thousands of dollars in attorney’s fees.

However, although uncommon, there is a small-percentage of divorcing spouses that have an amicable relationship. The marriage did not work out. But nonetheless, the spouses have an agreement with respect to their finances, their children, and their property. Both spouses are ready to accept and to move forward.

An uncontested divorce in Massachusetts is the most expeditious and cost efficient way of obtaining a divorce in Massachusetts, and while an uncontested divorce in Massachusetts requires voluminous amounts of paperwork, the expense and the toll the divorce takes on the parties and their children is exceedingly less than a hotly-contested divorce.

Below, we briefly go through the documents that are required for a Massachusetts uncontested divorce and explain each document and its importance.

The Massachusetts Uncontested Divorce: An Agreement Is Just The Beginning 

Divorce/Separation Agreement.  Obviously, out of all of the documents that are necessary to start an uncontested Massachusetts Divorce, the most important document is the Divorce Agreement.  This document must totally and completely resolve all matters that relate to the parties’ marriage.  This includes a parenting schedule, a child support order, division of all assets and debts, alimony (if applicable), health insurance, life insurance, retirement plans, taxes, etc.  This list is not meant to be exhaustive.  Each case is different and you may have issues or concerns in your divorce that may not exist in another divorce case.  You must be careful with this document.  It is binding upon you, your spouse, and your children for a very, very long time.  If at all possible, I would strongly recommend retaining an attorney to assist in the entirety of this process, but if that is not practical, I would at least recommend that each party retain an attorney to independently review the Divorce Agreement between the parties.

Financial Statements of Both Parties.  In an uncontested Massachusetts Divorce, the parties are required to file financial statements.  The “Massachusetts Divorce Financial Statement Form” is created by the Massachusetts Probate and Family Court and there are numerous forms to complete, dependent upon your financial circumstances.  For example, every individual must complete the “Massachusetts Financial Statement Form,” however, there are two separate forms to use dependent upon your gross income.  If you earn less than $75,000.00 per year, you may file the “Short Form Financial Statement.”  If, however, you earn more than $75,000.00 per year, you must file a “Long Form Financial Statement.”  This form, unlike the Short Form, must be notarized by a Notary Public.

Financial Statement Schedule A.  Now more than ever, we are an economy of small business owners.  Accordingly, if you are self-employed in Massachusetts you must file a “Financial Statement Schedule A,” along with your Short or Long Form Financial Statement.  This form gives the court a snapshot of your monthly expenses, revenues, etc., and is a vital tool in providing the court with a complete picture of your small business’s financial circumstances.

Financial Statement Schedule B.  If you own rental property and obtain income from said property, you must also complete “Financial Statement Schedule B.”  This form is used to provide the court and the other party with a snapshot of your annual rental incomes and expenses.  It is imperative that the information provided in this form is correct and up-to-date.

2021 Massachusetts Child Support Guidelines Worksheet (If the parties have children).  It is imperative that the court insures that any child involved in a divorce proceeding are financially supported by both parents.  To that end, the “2021 Massachusetts Child Support Guidelines Worksheet” must be completed and filed with the Massachusetts Uncontested Divorce Packet.

Further, it is imperative the parties understand that the weekly child support figure the guidelines suggest is the child support figure the court will impose upon the parties.  However, the parties may agree to a higher or lower amount, but the parties must have articulable reasons as to why the order that deviates from the amount suggested by the “Massachusetts Child Support Guidelines.”  (“She doesn’t want that much” is not a valid reason, fyi).  

Certificate of Absolute Divorce or Annulment.  The “Certificate of Absolute Divorce or Annulment” is required at the outset of a Massachusetts Uncontested Divorce.  This form asks for basic information regarding your marriage, such as how long the marriage was, how many children were born of the marriage, etc.

Certified Copy of Your Marriage Certificate.  The Massachusetts Probate and Family Court requires that the parties file a certified copy of your marriage certificate upon the commencement of an uncontested Massachusetts Divorce.  A certified copy of your marriage certificate is available in the city or town where you were married, or you may obtain a certified copy of your marriage certificate online here.

Joint Petition for Divorce.  The Massachusetts Family and Probate Court requires that the parties file ONE Joint Petition for Divorce.  This is a straight-forward document that each party must sign.  The Joint Petition for Divorce provides the court with the necessary information and the necessary request by both parties that their marriage be dissolved.

Affidavit Disclosing Care or Custody Proceedings.  Each party must complete their own “Affidavit Disclosing Care or Custody Proceedings.”  This document certifies to the court that there are no current or closed custody cases involving the parties children.  Each party is required to file their own document and each party is required to sign the affidavit under the pains and penalties of perjury.

Massachusetts Uncontested Divorce:  The Uncontested Divorce Hearing 

After the filing of the Joint Petition or a Divorce, and all the attached documents, the court will schedule the matter for an uncontested divorce hearing.  

The uncontested divorce hearing itself is very brief. The court will review the parties’ divorce agreement to insure the agreement is fair and reasonable, and that there have been adequate provisions for each party and for the parties’ children.  After the court has reviewed the Divorce Agreement, the parties will be asked certain questions to determine that you have read the agreement; that you believe it to be fair reasonable under the circumstances; and, that you have had the opportunity to review your spouse’s financial statements, and believe those statements to be true.

Upon the completion of the uncontested Massachusetts divorce hearing, Massachusetts Probate and Family Court will send you a copy of the judgment of divorce for your records. The divorce will be absolute 120 days after the hearing, and the parties remain married until this “divorce nisi” period is over.

Attorney Anthony Rao, Esq. has handled hundreds of uncontested divorces throughout the Commonwealth of Massachusetts.  He is available for a free telephone consultation at 617-953-0836, or via email at:  anthony@lawrao.com to discuss the uncontested divorce process in Massachusetts.

Categories
24D Program Field Sobriety Tests Massachusetts Drunk Driving Massachusetts Drunk Driving First Offense Massachusetts First Offense OUI Massachusetts License Suspension Massachusetts Surcharge OUI OUI First Offense

First Offense Drunk Driving in Massachusetts: The Roadmap to Moving On after a First Drunk Driving Arrest

The Consequences of a First Offense Drunk Driving Arrest in Massachusetts

Massachusetts takes first offense drunk-driving offenses very seriously. Individuals that are arrested for a first offense OUI in Massachusetts face significant consequences.

The criminal and civil penalties for a first drunk-driving offense in Massachusetts include, but are not limited to:

significant jail time; the loss of one’s driver’s license; the requirement to participate in extensive after-care programs; payment of monthly probation fees and court fines; the cost of litigating the criminal case; and increased insurance costs.

After An Arrest for First Offense OUI in Massachusetts

Massachusetts drunk-driving laws require the defendant be given a criminal citation at the time of the arrest. The criminal citation provides the defendant with important information, such as details of the charges against the defendant, as well as information on the date and time of the defendant’s arraignment.

An arraignment in Massachusetts for a first drunk-driving offense provides a critical opportunity for both the defense and prosecution in a drunk-driving case. For this reason alone, it is in the defendant’s own self-interests to retain a Massachusetts drunk-driving as soon as possible after the defendant’s arrest.

The 24D Disposition for First-time Drunk Drivers in Massachusetts

For a first time alleged drunk driver in Massachusetts, a “24D Disposition” is often the defendant’s best option to dispose of the first drunk-driving offense.

The “24D Disposition” is not available to all first-time Massachusetts drunk-drivers. There are many factors the court and the prosecutors will decide before agreeing to a “24D Disposition.”

A defendant eligible for a “24D Disposition” under Massachusetts drunk-driving laws may be able to obtain a hardship license within weeks, if not days, of the defendant’s arrest.

Attorney Anthony Rao, Esq. has been practicing law in the Commonwealth of Massachusetts since 2006. He has extensive experience in the zealous representation of defendants charged with First Offense Drunk Driving in Massachusetts. For a free consultation with Attorney Anthony Rao, Esq. please call 617-953-0836, or email him at Anthony@lawrao.com.

 

 

Categories
24D Program Field Sobriety Tests Massachusetts 24D Disposition Massachusetts Drunk Driving Massachusetts Drunk Driving First Offense Massachusetts First Offense OUI Massachusetts License Suspension Massachusetts Surcharge OUI OUI First Offense

Operating Under the Influence in Massachusetts: A Brief Overview of the Drunk Driving Laws of the Commonwealth of Massachusetts

Massachusetts Drunk Driving Statute

Section 24. (1) (a) (1) Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or while under the influence from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270 shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and imprisonment.”

Mass. Gen. Laws Chapter 90, Section 24 (1)(a)(1)

In Massachusetts, the Commonwealth has the luxury of choosing two different paths in efforts to convict an alleged Massachusetts drunk driver on a charge of operating under the influence. The easiest way for the Commonwealth to obtain a guilty verdict against an alleged drunk-driver is to use the breathalyzer test results.

In Massachusetts, it is illegal to drive with a blood alcohol level at or higher than .08. If the alleged drunk-driver submits to a breathalyzer test – and those test results are submitted as evidence to the jury – the Commonwealth must only show that the defendant took the breath-test, and the defendant blew a .08 or higher. This “.08 Per Se” drunk driving case is the easiest and fastest way for the Commonwealth of Massachusetts to obtain a guilty verdict against an alleged drunk-driver.

No Breathalyzer Test – The Commonwealth Must Prove The Driver Was Impaired Not Drunk

In Massachusetts, if an alleged drunk-driver does not take the breathalyzer test, the Commonwealth is required to prove the defendant was operating the motor vehicle, on a public way, under the influence of alcohol. The Commonwealth is not required to prove the defendant was “drunk.” Rather, the Commonwealth of Massachusetts only requires the prosecuting attorney prove that the operator of the motor vehicle was impaired by alcohol, and that this impairment influenced the driving of the operator. Indeed, based on the drunk driving laws of Massachusetts:

the Commonwealth is not required to show that the defendant actually drove in an unsafe or erratic manner, but must prove a diminished capacity to operate safely. “

Commonwealth v. Connolly, 394 Mass. 169, 173 (1985).

American citizens have rights and liberties. We are not to be arrested without cause. We are entitled to due process. We are presumed innocent until proven guilty. The United States Constitution and the Massachusetts Declaration of Rights were created to insure the government is for the people, by the people, and of the people.

Attorney Anthony Rao, Esq. is a zealous advocate for his clients, and he is available for telephone consultations at 617-953-0836, or at his email address: Anthony@lawrao.com. He is a lifelong resident of the Commonwealth of Massachusetts, the bedrock of American democracy.

Categories
Contempt Contempt Proceeding Massachusetts Department of Revenue DOR/CSE Enforcement of Court Order Enforcment of Massachusetts Court Order Massachusetts Child Support Massachusetts Complaint for Contempt Massachusetts Department of Revenue Child Support Enforcement Division Massachusetts DOR Massachusetts Enforcement of Court Order Massachusetts Enforcment of Court Order Massachusetts Failure to Pay Child Support Massachusetts Family and Probate Court Complaint for Contempt Uncategorized

Enforcment of Massachusetts Family Court Orders: How to make the other party do what they’re told

The Massachusetts Family Court has the authority to order parties – to numerous types of court proceedings – to do certain things. For example, a Temporary Order might order one party to pay child support to the other, or a Divorce Judgment may set a clear visitation schedule. A Judgment upon a Complaint for Modification might order the opposing party to pay a different amount of child support then previously ordered, or the Modification Judgment might change the previous terms of the parenting schedule. In all of these court orders, it is imperative that the party that is ordered to do something complies with the Massachusetts Family Court’s order. However, what does a party do if the ordered party is not in compliance with the Massachusetts Family Court Order? In this blog post, we examine the remedies and options available to the grieved party when the opposing party fails to comply with the Massachusetts Family and Probate Court’s order, and what strategies may work to force the opposing party into compliance.

THEY’RE NOT COMPLYING: NOW WHAT?

There are a few options available to force a party to comply with a court order in Massachusetts. First, you should reach out to the opposing party – either through your attorney or on your own – and determine why they are not in compliance with the Massachusetts Family Court’s order. In some instances this contact may force them into quick compliance, and will also give you insight into why the other party has delayed his or her compliance with the Court’s order. Often times, however, the other party will not so easily fall into compliance and further, more drastic measures must be taken.

If the initial communication with the non-compliant party does little to get said party into compliance, the grieved party may be forced to retain counsel to draft and proceed with a Complaint for Contempt. A Complaint for Contempt in Massachusetts is used when a party is not in compliance with a court’s clear order. It is the only tool available to bring the non-compliant party before the court and to force the non-compliant party to explain why they are not in compliance with the Massachusetts Family Court order. A draft of the Complaint for Contempt, along with a strongly-worded letter, should be sent to the non-compliant party prior to the filing of the Massachusetts Complaint for Contempt. The letter should indicate that the non-compliant party has 10-days to bring himself into compliance, or alternatively, to reach out to the opposing party with his/her game-plan moving forward. The non-compliant party should be warned that failure to respond to the letter within the short deadline will force the grieved party file the Complaint for Contempt. The letter should also inform the non-compliant party that the grieved party will not only seek full compliance with the Massachusetts Family Court Order, but that the moving party will also seek reimbursement for missed work, as well as Attorney’s fees.

CONTEMPT HEARING: BURDEN FALLS UPON THEE

Unlike other Massachusetts’ contempt hearings, in the Massachusetts Family and Probate Court, the burden of proving that the defendant is in Contempt falls upon the defendant. Pursuant to Massachusetts’ statutory language, the defendant has the initial burden of showing – through a preponderance of the evidence – that the defendant is not in violation of the court order, or alternatively, that the defendant has not complied with the court order, but has done so because he does not have the ability to comply.

Sadly, many courts will still place the initial burden upon the plaintiff to show the defendant has the ability to comply with the court order; however, the statute placing the burden upon the non-compliant is clear and unambiguous.

If the court finds that the defendant is in contempt of court for failure to abide by the court’s order, there are many remedies available to the court. The Massachusetts Family and Probate Judge has the authority to incarcerate the defendant until the defendant becomes compliant with the court order, the judge may also give the defendant a short amount of time to become compliant, and to set a short review date to closely follow the defendant’s road to full compliance with the court order. However, the judge may not – under any lawful circumstance – modify the underlying court order in a contempt proceeding. If the defendant wants to change the terms of the previous court order, the defendant must file a Complaint for Modification.

Finally, contempt proceedings are often times quite confrontational. Emotions run high, and with the possibility of incarceration, the stakes are extremely important to all involved. Both parties should be well-prepared, and should explain their cases clearly and concisely. Any outside evidence that you may have to prove your case should be brought before the court, and presented to the other side prior to the hearing. Massachusetts Family Court orders are meant to be followed, not ignored or otherwise disregarded.

Attorney Anthony Rao has handled thousands of contempt proceedings before the Massachusetts Family and Probate Court. He has successfully enforced thousands of Massachusetts orders and judgments, and is agreeable to numerous types of retainer agreements to better fit his client’s resources . He may be reached at anthony@lawrao.com, or at 617-953-0836.

Categories
Civil Motor Vehicle Infraction Civil Motor Vehicle Infraction De Novo Hearings CMVI Fighting Massachusetts Driving Ticket Massachusetts Driving Ticket Massachusetts Surcharge Speeding Tickets

Civil Motor Vehicle Infraction De Novo Hearings: One More Bite At The Surcharge Apple

In Massachusetts, a civil motor vehicle citation can cost you a lot more than the face value of the ticket itself.  Surchargeable events can stay on your driving record for years, and may cost a driver hundreds, if not thousands of dollars, in insurance premiums.  There are ways to fight driving tickets in Massachusetts, and this short article is meant to be a road-map to fighting Massachusetts’ driving tickets.

Clerk Magistrate Hearing: Hitting the Bull’s Eye When Not Looking

After receiving a Massachusetts’ driving citation, a driver is left with two choices.  First, the recipient of a Massachusetts driving ticket may simply pay the ticket.  This is the most common approach.  However, one must understand that paying the ticket itself may not be the only cost involved in obtaining the driving ticket.  In fact, most driving tickets in Massachusetts, such as speeding tickets, negligent operation, and marked-lane violation tickets, may very well be considered surchargeable events, and as such, a driver may be paying for this one alleged violation for years to come.

Further, upon paying the Massachusetts driving ticket, the driver is admitting that the driver in fact committed the act that the Massachusetts police officer has cited the driver for.  You will not have the opportunity to be heard. You are assumed to have violated the Massachusetts driving laws, and you will be considered a risk driver.  Accordingly, your Massachusetts’ driver’s insurance will most likely increase, and it will increase substantially.

The second choice a ticket recipient has is to fight the driving ticket.  In this instance, the driver completes the back of the citation, sends the citation to the appropriate venue, and a clerk-magistrate hearing will be scheduled.  The clerk-magistrate hearing is an opportunity for the driver to request an unbiased party to review the facts of the alleged incident, and determine if the Massachusetts police officer was justified in issuing the citation.  More often than not, the clerk-magistrate will side with the Massachusetts police officer, as the issuance of the ticket itself is evidence that the driver did violate the Massachusetts’ driving laws.  However, a well-prepared driver can present an excellent case that may sway the clerk-magistrate to find the driver “not responsible” and to dismiss the ticket from the driver’s record.

A well-prepared driver will bring pictures, provide testimony, and present witnesses to testify at the clerk-magistrate’s hearing.  Also, the driver will need to have a working-knowledge of the actual offense the driver was cited with.  This is critical, and will allow the driver to craft his argument and create his defense as to why he did not violate the driving regulation as asserted by the Massachusetts police officer.  This will provide an excellent opportunity to not only see the bull’s eye, but to also hit it squarely.

Finally, if the driver is unsuccessful at the Clerk-Magistrate’s hearing, she still has another bite left at the surcharge apple:  The Massachusetts’ Civil Motor Vehicle Infraction De Novo Hearing.

The De Novo Hearing: And the Judge’s Gavel Fell

If a driver is unsuccessful in appealing his citation before the Clerk-Magistrate, he may appeal the Clerk’s decision to a District Court judge.  The District Court judge will hear all evidence and testimony “de novo”, meaning the judge will not take into account the Clerk’s decision, and will look at all of the evidence and will hear all of the testimony without any deference to the clerk’s decision.  These hearings take on a much more formal dressing than the Clerk’s hearing, and a driver should almost always retain counsel to assist with the de novo hearing process.

The Massachusetts’ Civil Motor Vehicle Infraction De Novo hearing looks and feels like a “mini-trial.”  The Massachusetts police officer will take the stand and will testify as to her observations in regards to driver’s alleged violation of Massachusetts’ driver’s law.  The driver will have an opportunity to cross-exam the police officer, and to present a case of her own.  The driver may call witnesses, present evidence such as pictures, and video, and the driver may take the stand and testify on her own behalf.  Further, the driver is allowed to make a summation as to why she should not be held responsible for the alleged violations.

At the completion of the de novo hearing, the judge may only make two findings: “responsible” or “not responsible.”  The judge may not continue the case, or dismiss the citations.  The driver may appeal the judge’s decision; however, success on such an appeal is extremely slim.

It is strongly recommended that if a Massachusetts’ driver is going to fight a Massachusetts’ driving ticket, he should obtain an attorney immediately to make certain he has the best opportunity to avoid paying the ticket, and the surcharges that almost certainly will follow.

Attorney Anthony Rao has been successful in numerous Civil Motor Vehicle Infraction De Novo hearings here in Massachusetts, and may be retained on a flat-fee basis.  He may be reached at 617-953-0836, or at anthony@lawrao.com

Categories
OUI Second Offense

Second Offenders Guide To Life After The Second Offense: It Takes Two to Make A Thing Go Right.

ALL ARE FREE THE SECOND TIME AROUND

For any second-time drunk driving offender in Massachusetts, there are three distinct and separate parts to the entire ordeal. There is the event itself, the court proceedings, and the aftermath.  All of these three separate parts effect the defendant differently.  The defendant will be better prepared to deal with each of these events if he is  fully aware of what  each part consists of and how to better cope with each phase.

First, there is the entirety of the events up and until the first court appearance.  This includes the months, days and nights that lead up to the second offense itself.  Of course, this also includes the second offense itself.  The memories from that night might be very vivid for most, and for others, well, there may be no memory of the event at all.  Blackout, anyone? Anyone?

Second, is the entirety of the court process itself, from your first court appearance (the arraignment), through to the verdict or plea deal.  This process, at least for the majority of clients, is the most difficult.  The criminal justice system is complicated.  There is language used that is dense and hard to understand (even for some attorneys, hopefully not yours).  There are numerous delays, continuances, and the entire process seems unfair and skewed.  This perception is not incorrect and is not uncommon.

Further, during the entire court process the client has anger and resentment.  This anger and resentment is aimed at numerous targets:  the police; the judge; the prosecutor; the client’s own attorney; and inevitably,  the client himself.  Each of these separate targets becomes a part of the process, for better or worse.  It is common for a defendant to blame external factors, especially in the beginning of any court proceeding.  However, once the process has taken its course, and the defendant has come to terms with the events that brought him before the court, the defendant usually and correctly, takes responsibility for the events of that fateful day that brought him fully and completely into the criminal justice system.

Third, after the court process is complete and the OUI Second Offender has been found guilty or has plead guilty to OUI 2nd, the “rehabilitative” phase of the Second Offenders process begins.  There are three distinct and separate parts of the “rehabilitative” process:  (1) Probation; (2) Aftercare; and (3) the 2-week In-patient Rehab Program, better known as the DUIL Program, or as “hell” by some more disgruntle former clients.

PROBATION STATION (First and Last Stop) 

Every defendant’s case is different.  Some defendant’s have simple facts.  There was no car accident.  There were no injuries.  No one was hurt, there was no breathalyzer tests, and there were no witnesses, besides the police officer, to the alleged “dangerous” driving.  Other cases have more egregious facts, and these cases may be treated quite differently.  However, for the sake of brevity,  we will discuss only the most simple of cases.

Under Massachusetts Law, almost every defendant will receive the following set of terms for probation:  (1) Monthly check-ins with probation, either through writing, or by the defendant’s actual appearance; (2) Monthly probation fees of approximately $90.00 per month; (3) participation in an accredited “After-Care” Program within the Commonwealth of Massachusetts; and (4) 2 Week In-Patient Rehabilitation Program, better known as DUIL.  The length of the probation term for a Second Offender is 2 years from the date of the disposition of your case.  In other words, if you were found guilty of OUI Second and sentenced on July 14, 2012, your probation term would end on July 14, 2014.

AFTER-CARE BEWARE

The “After-Care” Program varies from each separate organization allowed to have an “After-Care” Program within the Commonwealth.  The defendant should pick a program that is close and convenient for the defendant.  On average, the “After-Care” programs generally last approximately 20-weeks.  The defendant is required to attend weekly group meetings that last for approximately one-hour and-a-half.  These meetings substantively discuss issues relating to alcohol, alcohol-education, and issues dealing with living a sober and healthy lifestyle.  Upon completion of the initial 20-week, week-to-week meetings, the defendant is required to do an exit interview with the “After-Care” Program, as well as attend once-a-month meetings for 6 months subsequent to the completion of the initial weekly group meetings and exit interview.

Finally, in regards to the “After-Care” Program, the defendant is also required to attend and complete 40 Alcoholic or Narcotic Anonymous classes before the completion of the initial 20-week “After-Care” Classes.  Once all of this is complete, the defendant is no longer required to attend any further “After-Care” Classes or AA/NA meetings, and is complete with this portion of his probation.

I AM GOING TO HELL IN A BUCKET, BUT AT LEAST I AM ENJOYING THE RIDE (On Second thought, not so much):  DUIL 

Over the years of my practice, out of all of the questions and concerns that Second Offenders raise during the initial consultation, there is no subject that is brought up by prospective clients more than DUIL.  The 2-week In-Patient program located in Tewskbury, Massachusetts, strikes the most fear in the heart of two-time OUI offenders.  But what is DUIL, exactly?  And what should a Second Offender expect? Besides the flames of hell, let’s try to explain.  (I kid, I kid).

The Beginning. The DUIL program has strict restrictions as to what clients can and cannot bring.  I will not draft an exhaustive list as to what a client cannot bring, but I will list the most important.  This information has changed over the years, and it is important to make certain to review the packet that the DUIL program will send a client approximately 2 to 4 weeks before their assigned check-in date.

DUIL clients cannot take any sort of electronic device such as Ipods, Ipads, cell phones, radios, etc.  Further, there is no smoking on the premises, and clients cannot take cigarettes, lighters, matches, etc.  Clients are also precluded from taking any items with them that contain alcohol, such as certain hair products, and facial cleansers.

The substance of DUIL.  Check-in day is a difficult day for the client, and the client’s family.  The client will feel like a pseudo-prisoner, and for good reason.  For all intents and purposes, the client’s liberty and freedom has been taken from them.  They cannot go and do as they please.  They cannot watch tv when they want to.  They cannot use or have access to their cell phones.  They cannot sleep in their own beds.

Clients are required to have a family member or friend drive them to DUIL.  The driver must wait for the client to successfully check-in to the DUIL Program.  The check-in process itself can take up to 3 hours, and it is strongly advised that the client notify the driver of this before the driver accepts this responsibility.  The reason for this is simple.  There are approximately 55 to 60 DUIL clients that must be processed.  Clients must submit to breath tests, complete voluminous paperwork, make payment, meet with nurses, meet with staff, etc.  In fact, it is one of the longest and hardest days the client will have at DUIL.

An important note: it is not entirely uncommon for individuals to be refused entry to DUIL at check-in.  There are two types of reasons for someone not to succeed at check-in:  (1) Medical discharge; or (2) non-medical discharge.  An individual may be medically discharged if they are having issues with blood pressure, or other medical issues that are non-related to drug or alcohol use.  The second, and more serious discharge for individuals on probation, relates to individuals who may be under the influence of drugs or alcohol, or have been caught attempting to bring contraband into DUIL.  These clients may likely face substantial punitive measures from their probation officers, including but not limited to violation of probation and an imposition of a prison term. (At least at DUIL you can wear what you want!)

Clients are assigned to a room.  You may or may not have a roommate depending  upon the number of clients at DUIL during your 2-week term.  There is a daily schedule that is rigorous.  As part of the daily routine, clients are required to wake-up every morning at 6:30am.  Breakfast is served daily at 7:30am.  The remainder of the day is filled with classes, group therapy, recreational time, chore time, AA meetings, and bed time at approximately 10:30pm.  There is no reading, no talking, and no lights allowed after 10:30pm.  Lunch is served daily at 12:30pm, and dinner is served promptly everyday at 5:30pm.

Clients should understand that after the first week, DUIL becomes somewhat enjoyable.  Clients have reported that they connect with other clients.  Group therapy allows for bonding as clients share their stories, their struggles, and the issues that have brought them to DUIL.  While many clients have equated DUIL to hell, many other clients have come out of DUIL stronger, wiser, and “cleansed.”

CHRIST YOU KNOW IT AIN’T EASY

As a criminal defense attorney that has handled numerous OUI Second-Offense cases, I have personally seen the trauma, and intense stress that my clients have been under.  Many alleged offenders are innocent as a matter of law, and they may never have to face the issues that await them if found guilty of this crime.  However, I offer this information to those of you who may find yourself in a situation that while not enviable, is what it is.  One must focus on the future, and only the things they can change, and part of changing is understanding the rode that is in front of you.

 

 

Categories
Department of Revenue DOR/CSE Massachusetts Child Support Massachusetts Department of Revenue Child Support Enforcement Division Massachusetts DOR Massachusetts License Suspension

Massachusetts Department of Revenue Child Support Enforcement Agency: They’re taking my license, now what?

As a former Child Support Enforcement Attorney for the Massachusetts Department of Revenue, I am all too familiar with the short-comings of an Agency empowered to insure that all the children of the Commonwealth are supported – to the largest extent possible – by their parents.  Indeed, custodial and non-custodial parents, on a daily basis, complain of the inefficiency and red-tape that seems to hamper the DOR in establishing, modifying, and enforcing child support orders in the Commonwealth.  However, with all of their short-comings, the DOR has an exceedingly undeserved poor reputation.  In this piece, we look to provide answers to the simplest of questions: What can the DOR do, and what is the best way to stop it!

The DOR has been given vast powers under Massachusetts General Laws Chapter 119A.  The DOR can suspend an individuals driver’s license, levy their bank accounts, intercept tax refunds, garnish wages, suspend an individual’s passport, and put liens on a person’s real property.  I have been a personal witness to all such actions.  However, with each of these powers, comes internal regulations and policies.  Most attorneys and lay-persons do not understand how these enforcement powers work, and most importantly, how they can be stopped.  As a former DOR attorney, I know that each of these actions can be delayed, and in most instances, completely side-stepped by one simple method: being proactive!

To know the DOR is to love it! Well, maybe not.  But one must not be intimidated by the agency, or its vast powers.  When an individual, who has a child support order, is having difficulty in not paying their child support obligation – even for one week – that individual should immediately contact the DOR.  Most people will contact the 1-800 number that is provided by the DOR on its website.  This, however, is a horrible decision, that will most certainly cause more delay, more stress, and be almost completely unproductive.  So who should a person contact when they are facing the possibility of the falling behind on their child support, or even worse, losing their driver’s license?  The answer is short and sweet – your DOR case worker.

Every custodial and non-custodial parent has an assigned case worker at the DOR.  This case worker is assigned by the last the name of the non-custodial parent.  The case worker is the “manager” and direct-contact for your case.  They are in charge of all of the enforcement powers used on your case.  The DOR case worker has almost complete authority in determining whether or not your license will be suspended, if you may have your license reinstated, and their willingness to work with you is a critical part in solving the DOR puzzle.  How do I contact my DOR case worker?

The DOR case worker is located in a DOR Regional Office.  For example, if you have a child support order out of Essex County, your case worker would be located in the Northern Regional Office.  This office has a direct number.  Call the direct number and ask to speak to your case worker. The case worker will ALWAYS work with you – not against you.  They are not in the business of making money; they do not work on commissions; they do not get bonus points for taking away your license.  They are their to help, and they are their to assist in collecting child support on behalf of your child.  They do not find joy in ruining someone’s life, although you may certainly feel like they do.  Indeed, the vast majority of DOR workers and staff are reasonable individuals that are simply using their best efforts to make certain the children of the Commonwealth are supported by their parents.  They are not a debt collection agency – they are not nasty and mean.   Reach out to your case worker – and explain your situation – they will listen and do their best to help you – most of the time.

Retaining the services of an attorney with first-hand knowledge of the DOR – and an attorney who is advocating on your behalf – is very useful.  For example, if you do manage to contact your case worker at the DOR, the DOR case worker will record – from their own memory – notes from your conversation.  All of these notes are printed and placed into your file.  Subsequently, when your case is brought before the court for a contempt action (for failure to pay support, where you may face the possibility of jail time up to 179 days) the DOR attorney may very will use these notes to indicate to the judge what you have previously asserted to the DOR.  This is why having an attorney who understands the child support laws of Massachusetts, and what should and should not be admitted to the DOR,  is crucial in achieving a great outcome for all parties involved – including your children!

Finally, I have seen so many cases where the non-custodial parent did not have the financial means to pay a high child support order, and that individual simply ignored the order entirely.  And when I say ignore, I mean did not make any payments.  This, by far, is the worst thing to do, and will almost guarantee a jail sentence! If you cannot afford your Massachusetts Child Support Order, retain an experienced Child Support  Attorney to file for a modification to have your child support order lowered.  But even more importantly, pay something every week — even if it’s $20.00.  This will not only show your good faith effort to your DOR case worker, but will also be evidence in a future contempt case that you are making some sort of effort.  An individual who has paid something every week will certainly appear to be more credible and honorable than a person who has done nothing.  So do something!

I am here to help you navigate this maze, and to make certain your rights and your children’s rights are protected!