https://www.bentleylawgroupllc.com https://www.bentleylawgroupllc.com/guardianship-in-massachusetts <h3> This is a subtitle for your new post </h3> <div> <img src="https://cdn.websites.hibu.com/md/dmtmpl/dms3rep/multi/blog_post_image.png"/> </div> <div data-rss-type="text"> <b> The Compass to Guardianships and Conservatorships in Massachusetts </b> <div> In Massachusetts, guardians have to be appointed by the Probate and Family Court. </div> <div> You don't become a guardian automatically just because you are the parent of an </div> <div> incapacitated adult. A temporary guardian may be appointed if it’s likely that there </div> <div> will be immediate, considerable harm to the health, safety, or well being of the </div> <div> person. </div> <div> <b> The court will not appoint you as a guardian if </b> : </div> <div> 1. You’re currently being investigated. </div> <div> 2. You have pending charges for committing an assault and battery that </div> <div> seriously injured the incapacitated person. </div> <div> 3. You’re currently being investigated for neglecting the incapacitated person. </div> <div> A guardianship is not the same as a conservatorship. Guardianships and </div> <div> conservatorships are filed through separate processes. </div> <div> Anyone who is interested in the incapacitated person&amp;#39;s well being can file a Petition </div> <div> for Guardianship. See File for guardianship of an incapacitated person for more </div> <div> information.  </div> <div> <b> Who is considered an incapacitated person </b> ? </div> <div> A guardian may be appointed for: </div> <div> 1. An incapacitated person — An incapacitated person is someone who </div> <div> does not have the ability to make their own decisions. An incapacitated person </div> <div> is defined as someone who for reasons other than advanced age or </div> <div> minority has a clinically diagnosed condition that results in an inability to </div> <div> receive and evaluate information or to make or communicate decisions to </div> <div> such an extent that the individual lacks the ability to meet essential </div> <div> requirements for physical health, safety, or self-care, even with appropriate </div> <div> technological assistance. </div> <div> 2. An intellectually disabled person — An intellectually disabled person is </div> <div> someone who has intellectual functioning that is significantly below average, </div> <div> usually defined as an IQ of less than 70. They also have limitations in 2 or </div> <div> more adaptive skills, such as communication, self-care, social skills, health, </div> <div> and safety. </div> <div> 3. A person with mental illness — Mental illness is a medical condition that </div> <div> disrupts a person's thoughts, feelings, mood, ability to relate to others, and </div> <div> daily functions. Mental illness often makes it more difficult to cope with </div> <div> ordinary day to day tasks. People suffering from a mental illness can get help </div> <div> with their symptoms by participating in a treatment plan. </div> <div> 4. Special circumstances — A guardian may also be necessary in these other </div> <div> circumstances, such as: </div> <div> 1. If an elderly parent has a degenerative health condition and can't </div> <div> consent to treatment or being placed in a nursing facility </div> <div> <span> 2. If a person has had a traumatic brain injury </span> </div> <div> 3. If a child with a disability is turning 18 </div> <div> <br/> </div> <div> <b> What is a Temporary Guardianship </b> </div> <div> A temporary guardian may be appointed if it’s likely that there will be immediate </div> <div> and substantial harm to the incapacitated person’s health, safety, or welfare. The </div> <div> person asking to be named guardian is called the petitioner, and the person believed </div> <div> to be incapacitated is called the respondent. A temporary guardianship generally </div> <div> lasts for less than 90 days. Temporary guardianship powers may be limited. The </div> <div> court will specifically order the temporary guardian’s responsibilities. A temporary </div> <div> guardian will go back to court to extend the temporary guardianship until the </div> <div> guardianship becomes permanent. </div> <div> <br/> </div> <div> <b> To request a temporary guardian, you'll need to file these forms </b> : </div> <div> 1. Temporary Bond, which must be approved by the court </div> <div> 2. Court Activity Record Information (CARI) for the person asking to become a </div> <div> guardian. CARIs include Criminal Offender Record Information (CORI), </div> <div> juvenile records, and information about civil restraining orders. </div> <div> 3. A verified Motion for Appointment of a Temporary Guardian (MPC 320). The </div> <div> motion must include: </div> <div> o The emergency </div> <div> o The risk </div> <div> o What authority is required </div> <div> o Why you’re asking for the period for giving notice to be waived or </div> <div> shortened, if applicable </div> <div> <br/> </div> <div> You should also include information about whether the incapacitated person has </div> <div> completed a Health Care Proxy and/or a Durable Power of Attorney with the </div> <div> motion. If an incapacitated person has a Health Care Proxy and a Durable Power of </div> <div> Attorney and no one disagrees about care plans, you might not need a guardianship. </div> <div> §1.2.10 Powers, Duties and Limitations of a Guardian To the extent permitted by </div> <div> the decree, a guardian is charged with making decisions concerning an incapacitated </div> <div> person’s support, care, education, health and welfare. [§5-309 (a)]. A guardian may </div> <div> exercise her authority only as necessitated by the incapacitated person’s mental and </div> <div> adaptive limitations, and, to the extent possible, must encourage participation in </div> <div> decisions and self reliance. [§5-309]. In addition to the reporting and monitoring </div> <div> requirements, the Code sets out various powers, duties and limitations of a guardian </div> <div> for an incapacitated person. A guardian of an incapacitated person shall, inter alia: </div> <div> 1) take custody and establish a place of abode within or outside the Commonwealth; </div> <div> 2) maintain sufficient contacts to know of the person’s capacities, limitations, needs, </div> <div> opportunities, and physical and mental health; 3) take care of personal effects; 4) </div> <div> commence protective proceedings, if necessary; and 5) apply available money to </div> <div> current needs. [§5-209 (b)]. A guardian of an incapacitated person may: 1) apply for </div> <div> <br/> </div> <div> and receive financial support for the incapacitated person; 2) in general, consent to </div> <div> usual and customary medical or other professional care or treatment; and 3) utilize </div> <div> the services of agencies and individuals to provide necessary and desirable social </div> <div> and protective services. [§5-209 (c)]. A guardian may not revoke a health care proxy </div> <div> without court order. [§5-309 (e)]. Moreover, if a health care proxy is in place, absent </div> <div> court order, a health-care decision of the agent takes precedence over that of a </div> <div> guardian. [§5-309 (e)]. A guardian may not admit or commit an incapacitated </div> <div> person to a mental health facility. [§5-309 (f)]. Guardians will need to proceed in the </div> <div> District Courts under G.L. c. 213 for such a commitment. [MA Comment, §5-306A]. A </div> <div> guardian may not admit an incapacitated person to a nursing facility except upon a </div> <div> specific finding by the court that such admission is in the incapacitated person’s best </div> <div> interest. [§5-309 (g)]. </div> <div> <br/> </div> <div> <b> The Role of Different Conservatorships in Massachusetts </b> </div> <div> Conservatorships are typically established for individuals who are incapacitated due </div> <div> to coma, advanced Alzheimer’s disease or dementia, or other serious illnesses or </div> <div> disabilities that prevent them from managing their estate. In other words, if an </div> <div> individual is unable to make sound decisions regarding their finances due to their </div> <div> physical or mental condition, a conservatorship may be established to protect their </div> <div> interests. While the backdrop of a conservatorship’s appointment might be due to </div> <div> an adult being sick, the conservator cannot make medical decisions for that </div> <div> individual. This is one of the major differences between a guardian and conservator. </div> <div> The use of conservatorships can be helpful in situations where the incapacitated </div> <div> individual has no other means of support or is vulnerable to exploitation. By </div> <div> appointing a conservator, the court can ensure that the individual’s assets are </div> <div> managed responsibly. </div> <div> However, it’s essential to note that conservatorships can also be controversial, and </div> <div> some individuals may view them as a loss of autonomy and independence. </div> <div> Therefore, it’s crucial to evaluate each case carefully and ensure that </div> <div> conservatorships are only established when necessary and appropriate. </div> <div> Establishing a conservatorship is a sensitive issue </div> <div> In legal terms, a conservatorship refers to a process where a person seeks to be </div> <div> appointed by the court as the conservator or caretaker for someone else referred to </div> <div> as the “protected person.” The conservator is granted the authority to take charge of </div> <div> the financial decisions relating to the protected person. However, in Massachusetts, </div> <div> the court starts from the premise that all adults can make financial decisions, </div> <div> making this process a sensitive matter. Due to the complicated nature of this </div> <div> process, the court may take a few weeks or months before the petition is approved. </div> <div> Financial Conservatorships </div> <div> <br/> </div> <div> Financial Conservatorships are, as the name suggests, created to help manage </div> <div> someone’s finances, usually a loved one. Often, these conservatorships are </div> <div> established by adult children to care for aging parents who begin showing signs of </div> <div> Alzheimer’s or other mentally debilitating symptoms. Conservators can be paid for </div> <div> their services. There’s also court supervision involved during the conservatorship. </div> <div> An attorney, like those at our law firm, can help guide conservators through the </div> <div> process of establishing the conservatorship appointment with the court, and with </div> <div> the administration over time in complying with court requirements and reporting. </div> <div> An attorney can also create legal boundaries for any conservatorship agreement, </div> <div> this way any questions of conflict of interests can be put to rest. </div> <div> Emergency Conservatorships. </div> <div> The legal procedure of emergency conservatorship involves the temporary </div> <div> appointment of a conservator, who is tasked with making financial decisions for a </div> <div> protected person who is unable to do so. Even if there is already a petition to </div> <div> establish a financial conservatorship, someone can petition the Probate and Family </div> <div> Law Court to establish a temporary conservatorship. Potential conservators need to </div> <div> state in the petition to the courts why they believe the protected person is in need of </div> <div> a conservatorship. </div> <div> <br/> </div> <div> <b> Joint Conservatorships </b> </div> <div> A Joint Conservatorship is a financial conservatorship. However, in a Joint </div> <div> Conservatorship, two conservators are appointed. Joint conservators need to </div> <div> petition the court, as in a more common financial conservatorship. Questions related </div> <div> to the necessity of the conservatorship, the harm prevention, and the actions that </div> <div> the conservators will take, must still be answered. In Massachusetts there’s also the </div> <div> possibility of establishing a Sole Conservatorship. </div> <div> <br/> </div> <div> <b> The Role of Different Conservatorships in Massachusetts </b> </div> <div> Conservatorships are typically established for individuals who are incapacitated due </div> <div> to coma, advanced Alzheimer’s disease or dementia, or other serious illnesses or </div> <div> disabilities that prevent them from managing their estate. In other words, if an </div> <div> individual is unable to make sound decisions regarding their finances due to their </div> <div> physical or mental condition, a conservatorship may be established to protect their </div> <div> interests. While the backdrop of a conservatorship’s appointment might be due to </div> <div> an adult being sick, the conservator cannot make medical decisions for that </div> <div> individual. This is one of the major differences between a guardian and conservator. </div> <div> The use of conservatorships can be helpful in situations where the incapacitated </div> <div> individual has no other means of support or is vulnerable to exploitation. By </div> <div> appointing a conservator, the court can ensure that the individual’s assets are </div> <div> managed responsibly.  <span> However, it’s essential to note that conservatorships can also be controversial, and </span> </div> <div> some individuals may view them as a loss of autonomy and independence. </div> <div> Therefore, it’s crucial to evaluate each case carefully and ensure that </div> <div> conservatorships are only established when necessary and appropriate. </div> <div> <br/> </div> <div> <b> Establishing a conservatorship is a sensitive issue </b> </div> <div> In legal terms, a conservatorship refers to a process where a person seeks to be </div> <div> appointed by the court as the conservator or caretaker for someone else referred to </div> <div> as the “protected person.” The conservator is granted the authority to take charge of </div> <div> the financial decisions relating to the protected person. However, in Massachusetts, </div> <div> the court starts from the premise that all adults can make financial decisions, </div> <div> making this process a sensitive matter. Due to the complicated nature of this </div> <div> process, the court may take a few weeks or months before the petition is approved. </div> <div> <br/> </div> <div> <b> Financial Conservatorships </b> </div> <div> Financial Conservatorships are, as the name suggests, created to help manage </div> <div> someone’s finances, usually a loved one. Often, these conservatorships are </div> <div> established by adult children to care for aging parents who begin showing signs of </div> <div> Alzheimer’s or other mentally debilitating symptoms. Conservators can be paid for </div> <div> their services. There’s also court supervision involved during the conservatorship. </div> <div> An attorney, like those at our law firm, can help guide conservators through the </div> <div> process of establishing the conservatorship appointment with the court, and with </div> <div> the administration over time in complying with court requirements and reporting. </div> <div> An attorney can also create legal boundaries for any conservatorship agreement, </div> <div> this way any questions of conflict of interests can be put to rest. </div> <div> <br/> </div> <div> <b> Emergency Conservatorships </b> </div> <div> The legal procedure of emergency conservatorship involves the temporary </div> <div> appointment of a conservator, who is tasked with making financial decisions for a </div> <div> protected person who is unable to do so. Even if there is already a petition to </div> <div> establish a financial conservatorship, someone can petition the Probate and Family </div> <div> Law Court to establish a temporary conservatorship. Potential conservators need to </div> <div> state in the petition to the courts why they believe the protected person is in need of </div> <div> a conservatorship. </div> <div> <br/> </div> <div> <b> Joint Conservatorships </b> </div> <div> A Joint Conservatorship is a financial conservatorship. However, in a Joint </div> <div> Conservatorship, two conservators are appointed. Joint conservators need to </div> <div> petition the court, as in a more common financial conservatorship. Questions related </div> <div> to the necessity of the conservatorship, the harm prevention, and the actions that </div> <div> the conservators will take, must still be answered. In Massachusetts there’s also the </div> <div> possibility of establishing a Sole Conservatorship. </div> <div> <br/> </div> <div> <b> Court Required Duties as a Conservator  </b> </div> <div> In order for your conservatorship  <span> appointment to be finalized, the court must approve both a decree and a bond. Once </span> </div> <div> approved, you are responsible to the court and to the Protected Person as follows: </div> <div> <b> GENERAL DUTY </b>   </div> <div> As a Conservator, you are a fiduciary responsible for managing the </div> <div> property of the Protected Person. Consequently, you must observe the standards of </div> <div> care applicable to trustees. You may exercise the authority only as authorized by </div> <div> the court’s decree. As a Conservator, you also have an obligation to the Protected </div> <div> Person. To the extent possible, this obligation involves encouraging the Protected </div> <div> Person to participate in decisions, to act on their own behalf, and to regain the </div> <div> ability to manage their estate and business affairs. </div> <div> <b> INVENTORY </b>   </div> <div> You must file an Inventory (MPC 854 or MPC 854a) within90 days of </div> <div> your temporary and/or permanent appointment. The purpose is to identify the </div> <div> assets of the protected person. See G. L. c. 190B, § 5-417. </div> <div> <b> ANNUALACCOUNT </b>   </div> <div> You must file an annual Account (MPC 853 or MPC 853a) for </div> <div> allowance. The annual Account must be filed with a Petition for Allowance (MPC </div> <div> 857). Your account is due each year within 60 days of the anniversary date of your </div> <div> appointment. Your account must be personally presented to the court, unless </div> <div> otherwise court ordered. The purpose is to present an accounting of your financial </div> <div> transactions and current status of the conservatorship estate during the accounting </div> <div> period. See G. L. c. 190B, § 5-418. </div> <div> <b> FINAL ACCOUNT </b>   </div> <div> You must file a final Account (MPC 853 or MPC 853a) for </div> <div> allowance when you resign, are removed or when the protected person dies or the </div> <div> conservatorship terminates. The final Account must be filed with a Petition for </div> <div> Order of Complete Settlement (MPC 860). Your final account is due within 60 days </div> <div> of the terminating event. The purpose is to present an accounting of all financial </div> <div> transactions and the final status of the conservatorship estate during the accounting </div> <div> period. See G. L. c. 190B, § 5-418 </div> <div> <b> FINANCIAL PLAN </b>   </div> <div> You must file a Conservator’s Financial Plan (MPC 861) ONLYif </div> <div> court ordered. The financial plan must be filed by the date ordered by the court, or if </div> <div> no date is specified, within 60 days of the date of the court order. See G. L. c. 190B, § </div> <div> 5-416(c). </div> <div> <b> CHANGE AUTHORITY </b>   </div> <div> You must file a Petition to Expand/Modify/Limit Powers </div> <div> (MPC 230) if you need to change your statutory authority under the law for any </div> <div> reason. For more details, see G. L. c. 190B, §§5-407, 5-423, 5-424, 5-425. </div> <div> <b> CHANGEOF ADDRESS </b> .  </div> <div> You must notify the court if the address of you or the </div> <div> protected person changes. See G. L. c. 190B, § 5-412.□ </div> <div> <b> DEATH OF PROTECTED PERSON </b> </div> <div> You must notify the court if the protected </div> <div> person dies. A copy of the death certificate must be filed. A final account of your </div> <div> administration as Conservator is required. See G.L. c. 190B, § 5-429.□ </div> <div> RESIGNATIONAS CONSERVATOR You must file a Petition for Resignation (MPC </div> <div> 202) if you no longer wish to serve as a conservator. See G. L. c. 190B, § 5-429. The </div> <div> purpose is to determine if a successor is necessary. </div> <div> <b> TERMINATION OF CONSERVATORSHIP </b>   </div> <div> You must file a Petition for Termination </div> <div> (MPC 203) if the protected person no longer requires conservatorship. See G. L. c. </div> <div> 190B, § 5-419. The purpose is to end the administration and transfer title to estate </div> <div> assets back to the formerly protected person. </div> <div> <br/> </div> <div> At Bentley Law Group we navigate you through the choppy waters of Guardianship </div> <div> and Conservatorship with caring practitioners who know the process from our </div> <div> successful representation for clients in these situations. Call the professionals today </div> <div> and get your loved ones protected. </div> </div> Thu, 26 Jun 2025 18:33:09 GMT https://www.bentleylawgroupllc.com/guardianship-in-massachusetts thumbnail main image https://www.bentleylawgroupllc.com/alimony-standards-and-recent-reforms <h3> This is a subtitle for your new post </h3> <div> <img src="https://cdn.hibuwebsites.com/68ab7710e70940eda025332bb1bd61a6/dms3rep/multi/20230324_082341.jpg"/> </div> <div data-rss-type="text"> NAVIGATING THE DELICATE AND COMPLEX ALIMONY STANDARDS IN MASSACHUSETTS: LIVING IN A POST OPENSHAW AND CAVANAGH WORLD <div> <br/> </div> <div> Many couples that are getting divorced in the Commonwealth of Massachusetts have to deal with the ever-changing laws of alimony and child support as put in place by the state’s highest courts. In the past three years, the landscape has changed so drastically that it is hard to find competent practitioners who can navigate through this difficult process. </div> <div> <br/> </div> <div> I have represented clients, and have gone to fight for them, who are just so confused and shocked regarding the whole daunting process of alimony. Even the negotiation process for settlement is a scary and nerve racking process because many lawyers don’t have a firm grasp of these new laws. In turn, many lawyers don’t do their clients justice when they are bargaining for alimony and the clients walk away with less due to a misunderstanding of the new laws.  </div> <div> <br/> </div> <div> At Bentley Law Group, our attorneys are specifically trained to help our clients with a compass through the never ending maze of catacombs and pitfalls regarding alimony. </div> <div> <br/> </div> <div> We understand our clients and their desire for thorough and competent representation during this difficult process. </div> <div> <br/> </div> <div> As both a lawyer and tax practitioner I believe the best way to address the alimony minefield is to discuss the new laws of the Probate and Family Court system and the tax laws that are interwoven into each of these new laws. </div> <div> <br/> </div> <div> Many practitioners try to understand the new laws but struggle with the tax implications of alimony. </div> <div> <br/> </div> <div> The following is lengthy blog, but t Bentley Law Group, we feel it is necessary to inform clients and future clients about what they are facing in alimony cases. </div> <div> <br/> </div> <div> In the following material you will read,I will explore the complex interaction between two recent alimony cases, Openshaw v. Openshaw (2024) and Cavanagh v. Cavanagh (2022), which have disrupted alimony practice in Massachusetts against a backdrop of shifting tax rules and the state’s increasingly complicated Child Support Guidelines. </div> <div> <br/> </div> <div> THE OLD STANDARD OF ALIMONY AND ITS TAX IMPLICATIONS: THE 30%-35% STANDARD 2013-2019 </div> <div>   </div> <div> The Massachusetts Alimony Reform Act (ARA), as set forth in M.G.L. c. 208, § 53, provides Massachusetts’s courts with specific parameters for calculating the amount of alimony in a divorce case. Specifically, the statute suggests that judges should “cap” alimony at an amount that should generally not exceed the recipient’s “need” or 30–35% of the difference in the parties’ gross incomes. Since 2017, however, interpreting the ARA has become increasingly complex, starting with the loss of tax deductibility for alimony payments in 2019, followed soon after by several Supreme Judicial Court (SJC) decisions that have increased the legal exposure of Massachusetts payors for higher support orders. </div> <div> <br/> </div> <div> As noted above, the ARA was conceived as a “cap” for alimony calculations, where the statute creates a presumptive ceiling on alimony based on the recipient’s “need” or 30–35% of the difference in the parties’ gross incomes. Until 2019, alimony was tax-deductible for state and federal tax purposes, meaning a former spouse could deduct alimony payments from their taxable income. Deductibility allowed many high-earning alimony payors to recover more than 40% of their alimony payments through tax savings based on their tax bracket. In practice, deductibility allowed the ARA’s language to act less like a “cap” and more like a formula, with most alimony cases resolving with an order calculated at 30–35% of the difference in the parties’ gross incomes between 2013 and 2019. </div> <div> <br/> </div> <div> In essence tax deductibility was a win-win in alimony cases. Most alimony payors, who typically generated earnings at higher tax brackets, received a substantial tax refund through tax deductibility. Meanwhile, most alimony recipients, who typically fell within substantially lower tax brackets, were often content to pay the taxes on the alimony they received at their lower tax rates, since paying the taxes generally meant higher alimony awards.  </div> <div> <br/> </div> <div> A DRASTIC CHANGE IN THE TAX LAWS </div> <div> <br/> </div> <div> In 2019, this delicate balance was thrown off by the federal Tax Cuts and Jobs Act (TCJA), which passed in 2017 and became law two years later. Under the TCJA, alimony payments would no longer be deductible for federal tax purposes in new divorce cases starting in 2019. By tax year 2022, Massachusetts followed suit, eliminating state deductibility. </div> <div> <br/> </div> <div> The impact of TCJA continues to be felt in Massachusetts as courts grapple with applying the ARA’s 30–35% “formula” in a world where alimony payors can no longer write off payments to their former spouses. In many alimony cases, attorneys submitted worksheets to judges that reverse-engineered the ARA’s 30–35% calculation into an after-tax number. The reality is a shocking as most alimony calculations end up between a 20% to $25% figure that is far below the old 30% to 35% standard </div> <div> <br/> </div> <div> A FIRE STORM HITS ALIMONY AND CHILD SUPPORT IN THE CAVANAGH CASE </div> <div> <br/> </div> <div> The Supreme Judicial Court (“SJC”) changed the landscape of alimony and child support in Massachusetts in the seminal case of Cavanagh v. Cavanagh, 490 Mass. 398 (2022) (“Cavanagh”). In its massive scope contained in the written opinion, the SJC issued one of its lengthiest family law decisions to date, and introduced a new method family court judges must apply when calculating alimony and child support. In so ruling, the Court provided guidance about what types of income must be included and excluded in child support calculations.  </div> <div> <br/> </div> <div> The crux of the SJC’s decision was that is was an abuse of discretion for a trial judge to calculate child support first so as to deny alimony based on the trial judge’s understanding that, under G.L. c. 208, § 53(c)(2), the same income relied on to calculate child support cannot be used also to calculate alimony. </div> <div> <br/> </div> <div> Many within the family law practice consider the Cavanagh decision a radical decision, and many judges and lawyers are confused about how to proceed forward on the issues and how to apply the new rules. </div> <div> <br/> </div> <div> CAVANAGH’S NEW CALCULTIONS FOR ALIMONY AND CHILD SUPPORT: SQUEEZING EVERY NICKEL OU OF THOSE WHO ARE JUDGED TO PAY ALIMONY </div> <div> <br/> </div> <div> Prior to Cavanagh, many family law judges and practitioners believed that child support should be calculated before alimony, and alimony was to be awarded only if there was excess income not used in the child support calculation.  </div> <div> <br/> </div> <div> The Cavanagh Court rejected that approach, and held that “[w]here, as here, a judge chooses to calculate the child support and then denies alimony on the basis that § 53(c)(2) prevents the use of the payor’s income to calculate alimony, the judge has abused her discretion because she has failed to do the fact-specific analysis of the family’s circumstances required by § 53(a).” Id. at 409. The SJC then introduced a new three-step method that must be followed in cases in which both alimony and child support are involved. The method is as follows: </div> <div> <br/> </div> <div> (1) Calculate alimony first, in light of the statutory factors enumerated in § 53(a) and the principle that, with the exception of reimbursement alimony, the amount of alimony should be determined with reference to the recipient spouse’s need for support to allow the spouse to maintain the lifestyle enjoyed prior to the termination of the parties’ marriage. Then calculate child support using the parties’ postalimony incomes. </div> <div> <br/> </div> <div> (2) Calculate child support first. Then calculate alimony, considering, to the extent possible, the statutory factors enumerated in § 53(a). We acknowledge that in the overwhelming majority of cases, the calculation of child support first will preclude any alimony being calculated in this step. </div> <div> <br/> </div> <div> (3) Compare the base award and tax consequences of the order that would result from the calculations in step (1) with those of the order that would result from the calculations in step (2), above. The judge should then fashion an order which would be the most equitable for the family before the court, considering the mandatory statutory factors set forth in G. L. c. 208, § 53(a), and the public policy that children be supported as completely as possible by their parents’ resources, G. L. c. 208, § 28, and then fashion the order such that it reflects, or alternatively is responsive to, those considerations. Where the judge chooses to issue an order pursuant to the calculations in step (2) or otherwise that does not include any award of alimony, the judge must articulate why such an order is warranted in light of the statutory factors set forth in § 53(a).[2] </div> <div> <br/> </div> <div> The SJC did not provide any guidance regarding how judges are to determine which order will be “the most equitable” under this new method. Moreover, Step 3 of the new method suggests that litigants will need to retain tax experts to calculate and then present to the court the tax consequences of the different potential alimony and child support orders, and the parties’ expected net after-tax incomes under both scenarios. Further, as a matter of public policy, if the parties cannot afford or otherwise fail to hire the appropriate tax experts, support awards calculated using the first test may be so high that they discourage a payor’s continued employment or future employment because of the harshness of the calculations. </div> <div> <br/> </div> <div> Types of Income to be Included in Child Support Calculations </div> <div> <br/> </div> <div> The Cavanagh Court considered the following different types of income, and determined whether they should be included in calculating child support: </div> <div> <br/> </div> <div> • Interest and dividends: Again referencing the CSG, the SJC explained that interest and dividends are to be included within income without qualification; that is, regardless of whether they are a regular source of income. Accordingly, the trial judge erred by excluding income from the father’s savings and 401k plan to the extent such income included interest and dividends. </div> <div> <br/> </div> <div> • Capital gains: Noting that the CSG state that capital gains need only be treated as a regular source of income where they relate to “real and personal property transactions,” the SJC clarified that they should otherwise be included in income even when not regular. The trial judge therefore erred by excluding capital gains on the father’s savings and 401k plan to the extent they included capital gains on transactions other than those related to real and personal property. </div> <div> <br/> </div> <div> • Income from second job: Insofar as the parties’ separation agreement provided that income from the father’s second job “shall not be utilized to calculate any future support obligations, whether child support or alimony,” the SJC held that this provision was void because “[p]arents may not bargain away the rights of their children to support.” at 422 (internal citation omitted). It remained within the trial judge’s discretion to consider this income when calculating child support. </div> <div> <br/> </div> <div> • Employer contributions to retirement accounts: In an issue of first impression in the Commonwealth, the SJC held that employer contributions to retirement accounts constitute income for purposes of calculating child support. The SJC found persuasive the reasoning of a Pennsylvania court, which held, “if we were to determine that an employer’s matching contributions are not income, it would be possible for an employee to enter into an agreement with his employer to take less wages in exchange for a heightened matching contribution. This would effectively permit an employee to shield his income in an effort to reduce his child support obligation.” Id. at 424 (internal citation omitted). The trial judge, therefore, did not abuse her discretion in including these contributions in the father’s income. Notably, the SJC did not explain how it is equitable to order a payor to pay support in present dollars on income that the payor cannot access without penalty until the payor reaches retirement age. </div> <div> <br/> </div> <div> • Employer contributions to health savings accounts: The SJC held that because employer contributions to health savings accounts (“HSAs”) are considered part of an employee’s compensation package, they properly constitute income for purposes of calculating child support. Again, the trial judge did not abuse her discretion in including these contributions in the father’s income. </div> <div> <br/> </div> <div> In a recent decision, the Appeals Court has already relied on the Cavanagh decision for the proposition that “principles restricting consideration of income derived from assets received in divorce for purposes of alimony have ‘no bearing’ on consideration of such income for purposes of child support.” Duval v. Duval, 101 Mass. App. Ct. 752, 763 (2022) (holding that on remand the trial court was free to consider husband’s dividend income from his business interest in connection with the support of the children). </div> <div> <br/> </div> <div> SUMMING UP CAVANAGH </div> <div> <br/> </div> <div> Three years after the decision it remains to be seen how closely trial judges and the family law bar will analyze and apply the Cavanagh methodology for calculating alimony and child support. More guidance from the SJC and the Appeals Court will be needed as to how to determine which approach to support is “most equitable,” and how to deal with the tax consequences of different awards. As every lawyer and judge knows, judges have broad discretion in applying the law. A calculation in one court might not be the same in another family court in Massachusetts, due to the analysis by the sitting judge. Until such guidance is received, Cavanagh remains open ended and is subject to constant squabbles among lawyers and judges alike. </div> <div> <br/> </div> <div> MORE DIESEL FUEL ON THE FIRE: ONE’S LIFESTYLE AND SAVINGS: ENTER OPENSHAW </div> <div> <br/> </div> <div> To confuse the delicate balance of alimony and the changing dynamics since Cavanagh even more, the SJC shed new light on what it means to "live" a certain lifestyle as a married couple and how those habits should be reflected in post-divorce alimony. The case, Openshaw v. Openshaw (2024), revolved around a couple who, during their marriage, didn't just focus on living well but also on saving wisely. When their marriage came to an end, the question arose: should their habit of saving be considered part of their marital lifestyle for the purposes of determining the appropriate amount of alimony? </div> <div> <br/> </div> <div>     The court's answer was a resounding YES. In essence, the court argued that saving isn't just a financial strategy; it's a way of life. For the Openshaws, who enjoyed a generous annual income far exceeding their living expenses, setting money aside wasn't merely about preparing for a rainy day. It was a consistent part of their lifestyle. </div> <div>   </div> <div> The Openshaw decision allows for savings to be considered a part of an alimony recipient’s needs if: (1) there is a clear record and pattern of saving by the parties during their marriage; and (2) there is sufficient income post-divorce to allow both parties to maintain the standard of living enjoyed during the marriage. Although the tension between “need” versus “ability to pay” is nothing new with regards to alimony in Massachusetts, the now clear precedent of including savings in a recipient’s “need” will certainly change the way that courts and litigants will approach alimony cases for high wage earners going forward. </div> <div>     </div> <div>  The implications of this are significant. When determining the need for support, courts can look beyond current spending habits to consider the entire scope of how a couple lives. This includes saving for the future. This means that in divorces where both parties have the financial means, both can be expected to maintain not just the living standards they enjoyed while married but also the saving habits that were part of their marital lifestyle. </div> <div> <br/> </div> <div> <br/> </div> <div> CONCLUDING THOUGHTS </div> <div> <br/> </div> <div> The information provided in this blog is to educate the lay person what to expect in alimony cases. The issues continue to be open ended and the broad discretion of the judges has courts ruling differently on the same issues. </div> <div> <br/> </div> <div> Give us a call at Bentley Law Group and consult with a family law expert and get the representation you deserve. </div> <div> <br/> </div> <div> <br/> </div> </div> Mon, 02 Jun 2025 18:45:39 GMT https://www.bentleylawgroupllc.com/alimony-standards-and-recent-reforms https://www.bentleylawgroupllc.com/notice-to-quit <div data-rss-type="text"> <h3> <span> Notice To Quit </span> </h3> </div> <div> <img src="https://cdn.hibuwebsites.com/68ab7710e70940eda025332bb1bd61a6/dms3rep/multi/bentley-law-group-llc-hero-landlord-tenant-law.jpg"/> </div> <div data-rss-type="text"> <p> <span> LANDLORD/TENANT- NOTICE TO QUIT </span> </p> <p> <span>   </span> </p> <p> <span> Massachusetts law requires that landlord serve a tenant with a notice to quit in order to initiate an eviction in most instances. The law specifies what type of notice to use under what circumstances. Normally, when a tenant owes money, a 14-Day Notice to Quit will suffice. If the tenant does not owe money, then a 30-Day Notice to Quit is the proper procedure to start an eviction process. Failure to follow the statutory provisions can lead to the dismissal of an eviction case if and when it reaches the court system. This is why it is very important to understand when to send a notice to quit, what type of notice to use, and what the notice needs to say in order to be legally valid. <br/>   <br/> </span> </p> <p> <span> As many landlords have found out the hard way, Massachusetts law is very sympathetic towards tenants, even those who have violated their leases or failed to pay rent. An incorrectly drafted or improperly served notice to quit can cause a landlord the frustration of having to re-restart a Summary Process case, re-serve the notice, or worse, it could subject the landlord to civil liability by way of counterclaims in Summary Process proceedings or a separate civil suit. In some cases, landlords are able to successfully navigate a Summary Process hearing without the benefit of legal counsel, however, the risks are high. This is why I recommend utilizing an attorney who knows the Housing Court as we do at Bentley Law Group, LLC. </span> </p> <p> <span>   </span> </p> <p> <span> What should you do about a notice to quit? <br/>   <br/> </span> </p> <p> <span> As a landlord, if you need to send a notice to quit, the first thing you should do is strongly consider hiring an experienced attorney. The cost may appear to be high at first, however, you must think carefully about the risks of proceeding without an attorney, which includes the costs of re-starting the eviction process if you have made any errors causing the court to dismiss your action. Be prepared to answer the attorney's questions about the tenant, the premises and the relationship between the landlord and the tenant. Some of these questions may seem irrelevant, but an experienced attorney knows what to ask in order to get the notice right the first time. </span> </p> <p> <span>   </span> </p> <p> <span> As a tenant if you receive a notice to quit, you may also want to contact an attorney if you have the means to do so. A notice to quit is an important document, and many people can feel intimidated and overwhelmed upon receiving one. The significance of the document should not be understated, however, a knowledgeable attorney will be able to examine the notice and discover if it is in fact legally valid or if it is defective. Defective notices to quit are sometimes served by inexperienced or uncouth landlords, and knowing how to identify a defective notice can be a powerful negotiating tool if you are facing eviction. Tenants who understand their rights and the requirements of the law are in a position to negotiate for a positive outcome in what might initially seem like a desperate or hopeless scenario.  </span> </p> <p> <span> <span>   </span> </span> </p> <p> <span> For landlords, if you decide to hire Bentley Law Group, we will walk you through the process of sending the notice quit, and we will draft and serve the document. From there we can discuss what the next steps of the process are, which might include negotiating with the tenant to avoid further legal action and save costs, or taking the tenant to court. We will be upfront about the costs of each step so that you can budget effectively throughout the proceedings, and we use our knowledge of the law and courtroom procedures to minimize costs to you.  </span> </p> <p> <span>   </span> </p> <p> <span> In the past we have dealt with tenants who fail to pay rent, tenants who engage in lease violations or illegal activities on the premises, unapproved sub-lettors and more. Each case is different and your results can never be guaranteed, but you can be confident that my experience will benefit you.  </span> </p> <p> <span>   </span> </p> <p> <span> For tenants, if you receive a notice to quit or have some other dispute with your landlord, your situation may not be as hopeless or desperate as it initially seems. I offer a wide range of services to tenants at prices that most find palatable. These services include but are not limited to: A limited consultation in which you pay an hourly fee and I advise you based on your circumstances, and provide guidance on how to move forward in order to give you peace of mind; Negotiation on your behalf with your landlord in order to avoid going to court and possibly resolving the situation amicably or at least reasonably; Formally representing you in court if the landlord files suit against you. I have represented tenants in all different circumstances, and in the past I have been able to stop an eviction dead in its tracks due to faulty documents served by the landlord, I have negotiated for tenants to receive time to move, and I have filed suit against landlords who fail to follow the law. All cases are different so your results may vary and are not guaranteed, but you be confident in my knowledge when it comes to landlord-tenant law.  </span> </p> <p> <span>   </span> </p> <p> <span> If you are ready to proceed with a notice to quit or you have recently received one, call the office of Bentley Law Group today to speak to an experienced attorney who will address your needs immediately.  We can be reached at (508) 655-4546. </span> </p> </div> Wed, 01 Nov 2023 19:32:42 GMT https://www.bentleylawgroupllc.com/notice-to-quit thumbnail main image https://www.bentleylawgroupllc.com/landlord-tenant-disputes-summary-process <div data-rss-type="text"> <h3> <span> Summary Process </span> </h3> </div> <div> <img src="https://cdn.hibuwebsites.com/68ab7710e70940eda025332bb1bd61a6/dms3rep/multi/bentley-law-group-llc-logo-01.svg"/> </div> <div data-rss-type="text"> <p> <span> Summary Process </span> <span> <span> <br/>   </span> </span> </p> <p> <span> In Massachusetts, a Court case brought by a landlord against a tenant in order to remove the tenant from the premises is referred to as a "Summary Process." This phrase is generally synonymous with an "eviction" proceeding in Court, and it comes from the fact that the case will be "summarized" in as much as it will generally move more rapidly through the Court system as compared to other civil matters in the District Court. In years past, Summary Process cases were frequently heard in the District Court, however, currently in Massachusetts most if not all Summary Process cases are heard in Housing Court. Housing Courts deal almost exclusively with Summary Process matters, and the hearings for a regional Housing Court are held in local Courts near the property that is the subject of the case.  </span> </p> <p> <span>   </span> </p> <p> <span> There are a number of differences between a Summary Process case and other Civil cases. Some specific differences include but aren't limited to the following:  </span> </p> <ul> <li> <span> The filing procedure and the timeline for filing is unique to Summary Process and must be followed precisely;  </span> </li> </ul> <p> <span>   </span> </p> <ul> <li> <span> The Summary Process summons and complaint are specific to Housing Court and used only in Summary Process, with no other type of summons or complaint being authorized for use in a Summary Process matter. Additionally, the summons and complaint are specific to the Court in which the case will be heard;  </span> </li> </ul> <p> <span>   </span> </p> <ul> <li> <span> The rules of civil procedure are still broadly applicable, however, the Housing Court has its own set of procedural and administrative rules relating to discovery, counterclaims, defaults, judgments, and more. </span> </li> </ul> <p> <span> <span>   </span> </span> </p> <p> <span> Summary Process in Massachusetts Housing Court is not quite the same as Small Claims Court, and not quite a standard Civil Case, but it occupies a space in between the two. Many, but not all, Summary Process cases can be resolved in a single trip to Court. Housing Courts offer mediation, which is a very valuable tool for resolving cases efficiently.  </span> </p> <p> <span>   </span> </p> <p> <span> For landlords:  </span> </p> <p> <span> Summary Process is the legal method of evicting a tenant, whether it's for nonpayment or for other reasons. Understanding the methods of filing, the specific rules, documents, and time frames will be critical to successfully navigating the Housing Court system. Errors of a technical nature can mean restarting the case and re-filing, and that means additional cost for you. If you decide to hire my office, I will walk you through Summary Process and how to avoid common pitfalls. I will draft, serve and file the appropriate summons and complaint. I will appear in Court if needed so that you have knowledgeable representation and your interests are protected. During our time working together, I will always be as upfront as possible about costs so that your bottom line is clear.  </span> </p> <p> <span> <br/> </span> </p> <p> <span> My past clients have included first-time landlords who own just a single rental unit and large property management companies and trusts that own or are responsible for hundreds of units across multiple jurisdictions in the state. In the past, I have dealt with tenants who fail to pay rent, tenants who engage in lease violations or illegal activities on the premises, abandoned leases, unapproved subletters, and more. Each case is different, and your results can never be guaranteed, but you can be confident that my experience will benefit you.  </span> </p> <p> <span> SUMMARY PROCESS </span> <span> <br/> </span> </p> <p> <span> For tenants, if you receive a Summary Process summons indicating that you must appear in Court, you must take this very seriously as it is an official court document. This may feel intimidating at first, however, you are not necessarily backed into a corner upon your receipt of a summons.  </span> </p> <p> <span>   </span> </p> <p> <span> <span> At Bentley Law Group, our firm has the experience and knowledge to represent our clients based on their specific circumstances, and provide guidance on how to move forward in order to give them a peace of mind; </span> </span> </p> <p> <span>   </span> </p> <p> <span> Negotiations on your behalf with your landlord is key strategy in order to avoid going to Court and possibly resolving the situation amicably or at least reasonably; Formally representing you in Court if the problem is not resolved prior to the court date assigned for Summary Process.  </span> </p> <p> <span>   </span> </p> <p> <span> I have represented tenants in all different circumstances, and in the past I have been able to stop an eviction dead in its tracks due to faulty documents served by the landlord, I have negotiated for tenants to receive time to move, and I have filed suit against landlords who fail to follow the law. All cases are different, so your results may vary and are not guaranteed, but you be confident in my knowledge when it comes to landlord-tenant law.  </span> </p> <p> <span> <span>   </span> </span> </p> <p> <span> Whether you are a landlord or a tenant, if you need legal services call my office today to speak to a professional. The first 15 minutes are free for first-time callers in order to decide if my office is the right fit for you. During the 15-minute consultation no legal advice will be given nor is an attorney-client relationship formed until a contract is signed. Once we decide to work together, I will walk you through the legal process, treat you with respect and professionalism, and help you get the results you deserve.  </span> </p> <p> <span>   </span> </p> </div> Wed, 01 Nov 2023 19:27:42 GMT https://www.bentleylawgroupllc.com/landlord-tenant-disputes-summary-process thumbnail main image https://www.bentleylawgroupllc.com/first-time-offenders-for-dui-in-massachusetts <div data-rss-type="text"> <h3> <span> <span> DUI First Offense and Understanding 24 D </span> </span> </h3> </div> <div> <img src="https://cdn.hibuwebsites.com/md/dmip/dms3rep/multi/road-trip-clauds.jpg"/> </div> <div data-rss-type="text"> <p> <span> FIRST TIME OFFENDERS FOR DUI </span> </p> <p> <span> At Bentley Law Group we understand how scary it is to be stopped for drunk driving in Massachusetts.  Our clients think they will go to jail or pay a hefty fine, and it is a possibility without proper representation from counsel.  While that may be true, our Attorneys can find a way out for first time offenders. Our clients turn to us for help, because of our experience.  Our success is due to understanding the criminal system, and fighting for our clients to get the best results in a bad situation. </span> </p> <p> <span>   </span> </p> <p> <span> 24 D Guidelines for DUI </span> </p> <p> <span> In Massachusetts, DUI first offenders may get what is known as a 24D disposition for the first drunk driving (DUI) offense. Mass. 24D first offender dispositions are granted pursuant to G.L. c. 90 § 24D which allows for the case to be continued without a finding and the placement of the defendant on probation for not more than 2 years. It also requires the enrollment in and successful completion of a driver alcohol education program.  </span> </p> <p> <span>   </span> </p> <p> <span> One of the major benefits of the 24D program is that the statutory one year DUI license suspension may be reduced to 45 to 90 days, with the possibility of obtaining a hardship license during the suspension period.  </span> </p> <p> <span>   </span> </p> <p> <span> Also, a DUI First Offender disposition will generally make the first offender eligible for consideration for a hardship license during the breathalyzer refusal suspension, if there is one.  The goal of the First Offender Drunk Driving program is to reduce alcohol related highway fatalities and for DUI first offenders to take responsibility for their previous drinking and driving behaviors so that they stop driving after drinking. The Massachusetts 24D program replaces incarceration and punishment with treatment and alcohol education, to prevent future DUI arrests. </span> </p> <p> <span>   </span> </p> <p> <span> <span> DUI first offenders must take an approved and certified driver alcohol education program. The program costs approximately $600.00 and it generally consists of an intake interview, 32 hours of group therapy over a 16 week period, an introduction to self-help groups such as AA, and a powerful victim impact session with speakers from MADD. The last part of the program consists of an exit interview where participants receive recommendations for any necessary aftercare and support. </span> </span> </p> <p> <span>   </span> </p> <p> <span> Massachusetts First offenders are eligible to be considered for a hardship license upon enrollment into the program; it is not necessary to wait until the program has been completed. However, failing to attend the program will result in the immediate revocation of any hardship license. DUI First Offender programs are located throughout Massachusetts. </span> </p> <p> <span>   </span> </p> <p> <span> The RMV has stated that: “although an applicant may meet all requirements, issuance of a hardship license is only granted at the reasonable discretion of the RMV, based on the facts of the case.” Therefore, it is advisable to have an attorney review your case. </span> </p> <p> <span> <span>   <br/> The First Offender program is only available to those who have no prior convictions or program assignments, or those who have a conviction or alcohol program assignment that is more than ten (10) year old. </span> </span> </p> <p> <span>   </span> </p> <p> <span> BREAKDOWN </span> </p> <p> <span> The 24D disposition—available to most first offenders—is designed to help you avoid harsh penalties for a one-time mistake. Most importantly, you won’t go to jail. </span> </p> <p> <span>   </span> </p> <p> <span> This disposition would follow upon a Continuance Without Finding (CWOF) in your case. Essentially, a CWOF is an admission to sufficient facts to warrant a finding of guilty, but without the actual imposition of a conviction. </span> </p> <p> <span>   </span> </p> <p> <span> <span> CWOFs allow the state to avoid costly trials in favor of positive rehabilitation and will enable you to avoid jail and a conviction on your criminal record. The case is “continued” for a probation period. </span> </span> </p> <p> <span> As long as you obey the terms of probation, the charges will be dismissed at the end with no conviction. There will still be legal penalties, including: </span> </p> <ul> <li> <span> 1 year of probation (in lieu of jail time) </span> </li> <li> <span> A reduced 45-90 day license suspension </span> </li> <li> <span> 16 weeks in a “24D” alcohol education program for first offenders </span> </li> <li> <span> Fees and fines </span> </li> </ul> <p> <span>   </span> </p> <p> <span> If you have been stopped for drunk driving and don’t know where to turn, turn to Bentley Law Group for help. </span> </p> <p> <span>   </span> </p> <p> <span> We take a caring and sympathetic approach to each one of our dui cases. </span> </p> <p> <span>   </span> </p> <p> <span> Don’t go at it alone or with an inexperienced attorney. </span> </p> <p> <span>   </span> </p> <p> <span> Call us for a free consultation and let us help you get the results you want. </span> </p> </div> Thu, 05 Oct 2023 13:54:10 GMT https://www.bentleylawgroupllc.com/first-time-offenders-for-dui-in-massachusetts thumbnail main image https://www.bentleylawgroupllc.com/dividing-assets-in-a-massachusetts-divorce <div data-rss-type="text"> <h3> <span> Equitable Division of Marital Assets in Massachusetts </span> </h3> </div> <div> <img src="https://cdn.hibuwebsites.com/68ab7710e70940eda025332bb1bd61a6/dms3rep/multi/bentley-law-group-llc-logo-01.svg"/> </div> <div data-rss-type="text"> <p> <span> SPLITTING UP AND SPLITTING ASSETS </span> </p> <p> <span>   </span> </p> <p> <span> Couples in a divorce in Massachusetts need to divide all their marital property and debts, assigning property, money, and debts to one spouse or another. All property, income, and debts acquired during the marriage are considered “marital”—it does not matter if one spouse made more money than the other or if the couple kept separate bank accounts and paid for expenses separately. </span> </p> <p> <span>   </span> </p> <p> <span> How Courts Decide Asset Division </span> </p> <p> <span>   </span> </p> <p> <span> By law, Massachusetts is not a “community property” state, but in practice, even after litigation, most property settlements end up very similar to what they would be in community property states. In community property states, premarital property is defined to be “separate property” belonging to one person, and all property accumulated during the marriage (with the possible exception of inheritances) is defined as “community property,” belonging equally to both spouses. In community property states, couples are obliged to follow an exact 50-50 split of community property. </span> </p> <p> <span>   </span> </p> <p> <span> In Massachusetts law, by contrast, a judge can throw all property, both premarital and marital, into the mix, and the court does not have to divide it evenly. If a court, rather than the couple themselves, is deciding how to divide assets, Massachusetts law specifies that “the court may assign to either husband or wife all or any part of the estate of the other.” In other words, the court can take all the property of one spouse, even premarital, and give 100% of it to the other spouse! </span> </p> <p> <span>   </span> </p> <p> <span> <span> The Massachusetts statute, </span> </span> <a href="https://malegislature.gov/laws/generallaws/partii/titleiii/chapter208/section34" target="_blank"> Massachusetts General Law, c. 208, §34 </a> <span> <span> , lists the factors that either can be or must be considered by the court in determining how assets are divided. </span> </span> </p> <p> <span>   </span> </p> <p> <span> These equitable distribution factors include: </span> </p> <p> <span> ·       How long the marriage lasted; </span> </p> <p> <span> ·       The ages of both parties; </span> </p> <p> <span> ·       The behavior of each party during the marriage; </span> </p> <p> <span> ·       The health status of both parties; </span> </p> <p> <span> ·       Occupations of each party; </span> </p> <p> <span> ·       The degree of employability of each party; </span> </p> <p> <span> ·       The vocational skills of each party; </span> </p> <p> <span> ·       How much income each party brought to the marriage and where it came from; </span> </p> <p> <span> ·       Amount of liabilities each party brought to the marriage; </span> </p> <p> <span> ·       The social status of the parties while they were married; </span> </p> <p> <span> ·       If there are any minor children, what their needs are and will be after the divorce; </span> </p> <p> <span> ·       What, if any, opportunities exist for both parties to acquire capital assets; </span> </p> <p> <span> ·       The estates belonging to each party and what their contributions were to preserve and grow those estates; </span> </p> <p> <span> ·       What were the contributions of each party when one party is a homemaker; </span> </p> <p> <span> ·       The specific needs of each party; and others. </span> </p> <p> <br/> </p> <p> <span> All of these factors impact a 50/50 division into a court order that is tailored to the individuals involved. If one party received an inheritance during the marriage, or other kinds of gifts, they could be considered the property of both, based upon the case. Or if one spouse owned a business, it would be considered an asset of the marriage and therefore subject to being divided. Likewise, time shares, stock options, cash, tax shelter assets, even future assets and retirement accounts would be eligible for division between the parties. If, for example, one spouse had a collection of coins, it would have to be noted on a financial statement after it was fully evaluated. Virtually anything is subject to being divided between the spouses, and not always equally. </span> </p> <p> <span>   </span> </p> <p> <span> Massachusetts Divorce Property Division </span> </p> <p> <span> Though marital property can be being divided however the court sees fit, not all assets are subject to this. Anything that falls under the umbrella of separate property cannot be divided. Separate property includes all income, property, and assets that were acquired before the marriage. </span> </p> <p> <span>   </span> </p> <p> <span> Who Gets the House in a MA Divorce </span> <span> ? </span> </p> <p> <span> If the home was acquired after the marriage, it is called marital property and will be used in the divorce proceedings. All property, including the house, must be shared equitably in this situation. As a result, if a couple can compromise to what is equitable in their case, one of them can gain home ownership. </span> </p> <p> <span>   </span> </p> <p> <span> In some cases, a judge would be the one to determine the best option. </span> </p> <p> <span> In certain cases, a court will give the individual who has custody of the children from the marriage possession of the marital home. Furthermore, a Massachusetts court may consider homeownership to be a portion of child support. In such a case, one partner does not “lose” possession of the home; rather, they must wait until it is sold before receiving their share of its worth. </span> </p> <p> <span>   </span> </p> <p> <span> The Power of Bentley Law Group in Representing You and Your Case </span> </p> <p> <span>   </span> </p> <p> <span> <span> Divorce is often accompanied by negative emotions and stress, often making </span> </span> <a href="https://www.worcesterdivorcefirm.com/family-law/divorce/the-divorce-process/" target="_blank"> the divorce process </a> <span> <span> even more difficult. </span> </span> </p> <p> <span>   </span> </p> <p> <span> <span> At Bentley Law Group, we believe in a very empathetic and caring approach to helping our clients pursue the best possible outcome of a divorce, fighting for the most equitable and fair division of assets as well as </span> </span> <a href="https://www.worcesterdivorcefirm.com/family-law/child-support/" target="_blank"> child support </a> <span> <span> . </span> </span> </p> <p> <span>   </span> </p> <p> <span> <span> We are by your side throughout the entire process, with the goal of getting you beyond this phase and prepared to transition into a new beginning. </span> </span> </p> <p> <br/> </p> <p> <br/> </p> </div> Wed, 27 Sep 2023 19:50:27 GMT https://www.bentleylawgroupllc.com/dividing-assets-in-a-massachusetts-divorce thumbnail main image https://www.bentleylawgroupllc.com/navigating-the-choppy-waters-of-legal-and-physical-custody-in-massachusetts <div data-rss-type="text"> <h3> <span> Navigating the Choppy Waters of Legal and Physical Custody In Massachusetts </span> </h3> </div> <div> <img src="https://cdn.hibuwebsites.com/68ab7710e70940eda025332bb1bd61a6/dms3rep/multi/bentley-law-group-llc-hero-reviews.jpg"/> </div> <div data-rss-type="text"> <p> <span> Splitting up with your significant other when children are involved is a harrowing, life altering situation that will affect all who are involved. </span> </p> <p> <span>   </span> </p> <p> <span> Whether you are married or not, we all hear the word custody pop up when couples decide to split up and have children. </span> </p> <p> <span>   </span> </p> <p> <span> However, many are perplexed regarding about the meaning of “custody” and how it affects their parenting when certain rights are given or taken away by the courts. </span> </p> <p> <span>   </span> </p> <p> <span> At Bentley Law Group, we know how important a custody battle is from many years of providing caring and empathetic services to our clients. </span> </p> <p> <span>   </span> </p> <p> <span> <span> Custody has many meanings in the Commonwealth of Massachusetts, and a thorough explanation is necessary to help navigate these choppy waters that Bentley Law Group navigates every day for our clients. </span> </span> </p> <p> <span>   </span> </p> <p> <span> What is custody? </span> </p> <p> <span>   </span> </p> <p> <span> Custody is the legal responsibility for the care and control of your minor child. The judge may give custody of your child to one or both parents. There are two types of custody: legal and physical. </span> </p> <p> <span>   </span> </p> <ul> <li> <span> Legal custody is the right to make major decisions about your child’s well-being, including matters of education, medical care and religious development. </span> </li> </ul> <p> <span>   </span> </p> <ul> <li> <span> Physical custody deals with whom the child will live with on a day-to-day basis. </span> </li> </ul> <p> <span>   </span> </p> <p> <span> What options are there for legal custody? </span> </p> <p> <span>   </span> </p> <p> <span> A judge may award one parent sole legal custody or both parents shared legal custody. </span> </p> <p> <span>   </span> </p> <ul> <li> <span> Sole legal custody means one parent will have the right to make major decisions about the child’s well-being, including matters of education, medical care and religious development. </span> </li> </ul> <p> <span>   </span> </p> <ul> <li> <span> Shared legal custody means that both parents have the right to take part in major decisions about the child’s well-being. </span> </li> </ul> <p> <span>   </span> </p> <p> <span> What options are there for physical custody? </span> </p> <p> <span>   </span> </p> <p> <span> A judge may award one parent sole physical custody or both parents shared physical custody. </span> </p> <p> <span>   </span> </p> <ul> <li> <span> Sole physical custody means the child will live with one parent and be under that parent’s supervision. The other parent will be allowed to have visitation with the child, unless the judge decides that visitation would not be in the best interest of the child. </span> </li> </ul> <p> <span>   </span> </p> <ul> <li> <span> Shared physical custody (also called joint custody) means the child will split his/her time between both parents’ homes. The time will be split so that the child will have a lot of contact with both parents. </span> </li> </ul> <p> <span>   </span> </p> <h2> <span> What is the difference between custody and visitation? </span> </h2> <h2> <span>   </span> </h2> <p> <span> Visitation allows a parent to visit with his/her child. How often the visits take place, where the visits take place, and whether or not the visits need to be supervised by another adult, will all be determined by the court. </span> ¹ </p> <p> <span>   </span> </p> <p> <span> Unlike legal custody, visitation does not give a parent the right to make major decisions about the child’s well-being, including education or medical care matters. A parent must have either sole or shared legal custody in order to make those decisions. </span> </p> <p> <span>   </span> </p> <p> <span> Unlike physical custody, a child will not live long-term with a parent who has visitation rights. However, the child may be able to have overnight, weekend, or even longer visits with the parent, depending on what the judge decides. </span> </p> <p> <span> <span>   </span> </span> </p> <h2> <span> Who has custody if there is no custody order in place? </span> </h2> <h2> <span>   </span> </h2> <p> <span> If the parents are married and have not gotten a custody order, both spouses automatically share legal custody of the child until a judge says otherwise. This means that both you and your spouse have the right to make major decisions about your child’s life. </span> </p> <p> <span>   </span> </p> <p> <span> If the parents were never married, and there is no custody order in place, the mother has sole legal and sole physical custody of the child unless a judge orders otherwise. Unlike most other states, this is true even if paternity (legal fatherhood) has been established by the father. </span> </p> <p> <span>   </span> </p> <p> <span> Paternity can be established by signing and filing a voluntary acknowledgment (usually done at the hospital at birth) or by a judge’s order after either parent files a paternity petition in court. However, as mentioned above, once paternity is established, the mother is still considered to have custody, unless and until the father files for, and receives, shared or sole custody in court. </span> </p> <p> <span>   </span> </p> <p> <span> Custody And the Home </span> </p> <p> <span>   </span> </p> <p> <span> <span> Whoever gains primary custody of the children may have certain advantages, and this is another reason why you might want to take your custody battle seriously. </span> </span> </p> <p> <span>   </span> </p> <p> <span> Of course, the child’s best interests are always the top priority for any Massachusetts judge, and in some cases, it may be in their best interest for property to be handled in a certain manner. </span> </p> <p> <span>   </span> </p> <p> <span> The Primary Custodian Often Gets the Family Home </span> </p> <p> <span> <span> <br/> If you gain primary physical custody of your child, it is likely that you will retain ownership of the family home. This is because judges in Massachusetts often want to make this period as easy as possible for children. </span> </span> </p> <p> <span>   </span> </p> <p> <span> Moving out of the family home can cause additional trauma for them, and their home may be nearby many helpful sources of support, such as a familiar park, their school, or a best friend. </span> </p> <p> <span> A common scenario is for the “dependent” spouse to retain the family home, receiving child support payments from the other spouse while acting as the primary guardian. This is because the dependent spouse likely spent more time with the children while acting as a “stay-at-home” parent. </span> </p> <p> <span>   </span> </p> <p> <span> Spending more time with the child likely strengthened the relationship, making it more likely for a judge to grant them primary custody. In addition, the dependent spouse may not have the necessary funds to purchase a new home, adding to the likelihood that they will be allowed to continue living in the marital home. </span> </p> <p> <span>   </span> </p> <p> <span> The Court Can Order the Delay of a House Sale </span> </p> <p> <span> <br/> In some cases, the court can order that the sale of a family home be delayed until after children have graduated or turned 18. Even though one spouse may receive sole ownership of the family home, the principles of equitable distribution may make this arrangement unfair. Especially in the case of a dependent spouse, they may have no other assets to “trade” in exchange for ownership of the family home. In this case, they may be forced to sell the marital home and split the proceeds with their ex. However, this can be delayed until after the children are ready to live on their own. </span> </p> <p> <span>   </span> </p> <p> <span> <span> At Bentley Law Group we go the extra distance for our clients to win their custody battles. </span> </span> </p> <p> <span>   </span> </p> <p> <span> Whether you want parenting rights, legal or physical custody, please give our firm a call. </span> </p> <p> <span>   </span> </p> <p> <span> You need a seasoned attorney fighting for you and your children. </span> </p> </div> Tue, 26 Sep 2023 12:37:11 GMT https://www.bentleylawgroupllc.com/navigating-the-choppy-waters-of-legal-and-physical-custody-in-massachusetts thumbnail main image https://www.bentleylawgroupllc.com/demystifying-summary-judgment-massachusetts-rules-of-civil-procedure-rule-56 <div data-rss-type="text"> <p> <span> DEMYSTIFYING SUMMARY JUDGMENT </span> </p> <p> <span> MASSACHUSETTS RULES OF CIVIL PROCEDURE (RULE 56) </span> </p> <h3> <span>   </span> </h3> </div> <div> <img src="https://cdn.hibuwebsites.com/68ab7710e70940eda025332bb1bd61a6/dms3rep/multi/bentley-law-group-llc-hero-motor-vehicle-negligence-and-ma-hardship-law.jpg"/> </div> <div data-rss-type="text"> <p> <span> <span> Settlement. Mediation. Arbitration. Trial. These are the anticipated outcomes we generally consider in civil litigation, but there are other possible positive or negative outcomes depending which side you are on. </span> </span> </p> <p> <span>   </span> </p> <p> <span> “Summary Judgment” is another outcome in the litigation proces </span> <span> <span> s. </span> </span> </p> <p> <span>   </span> </p> <p> <span> To understand summary judgment, it is helpful to first understand the role of a trial in a civil case. The purpose of a trial is for the jury (or judge, if there is no jury) to decide which “side of the story” to believe. Doing so requires the judge or jury to hear the disputed facts and determine which side is more credible. Once doing so, the jury or judge applies these determined facts to the law and offers a final judgment in the matter. </span> </p> <p> <span>   </span> </p> <p> <span> <span> Summary Judgment, however, is an attempt to get a court judgment without going the distance of the litigation process to trial. Thus, Summary judgment is the stop sign in the road in the litigation process. </span> </span> </p> <p> <span>   </span> </p> <p> <span> <span> Summary Judgment, by definition, is where judgment is granted to the party that moves the court by motion because: “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” </span> </span> </p> <p> <span>   </span> </p> <p> <span> This definition perplexes lawyers and non-lawyers alike, so dissecting the definition to understand what this means is worthwhile. </span> </p> <p> <span>   </span> </p> <p> <span> What is Summary Judgment </span> <span> ? </span> </p> <p> <span>   </span> </p> <p> <span> <span> A judgment is essentially a final decision or a court order in response to a legal action. A judgment is something that can be appealed to a higher court and is considered final in that court. Though a non-prevailing party may file a motion to reconsider, a judgment is generally considered final. </span> </span> </p> <p> <span>   </span> </p> <p> <span> There is one very basic premise upon which summary judgment motions are based. The job of the trier of fact (whether jury or judge) is to determine the facts, while determining the law is a job for the judge alone. If there are no facts actually in dispute between the parties, there can be no trial, because there is no role for the trier of fact to play. However, even with that basic premise, summary judgment has many different moving parts that must be explained. </span> </p> <p> <span>   </span> </p> <p> <span> The Sea of Uncertainty of Summary Judgment </span> </p> <p> <span>   </span> </p> <p> <span> <span> Summary Judgment suggests that judgment has been issued to a part or all of a case or controversy—however, summary judgment rarely disposes of an entire case. </span> </span> </p> <p> <span>   </span> </p> <p> <span> Summary Judgment allows the court to make a final decision regarding one count, one aspect, or one fact of a case, allowing the matter to proceed on every issue except that which was dealt with at summary judgment. The idea is to save the parties and the court time and expense in having to deal with something that is essentially not at issue—thus there is “no genuine issue as to any material fact,” as mentioned above. </span> </p> <p> <span>   </span> </p> <p> <span> Motion for Summary Judgment </span> </p> <p> <span>   </span> </p> <p> <span> The discovery portion of litigation usually exposes the facts, the big outstanding questions, and the controversies that cannot seem to be agreed upon by the opposing parties. </span> </p> <p> <span>   </span> </p> <p> <span> As the parties' plow through the materials that both sides gave to each other in discovery, either the plaintiff or the defendant can move for Motion for Summary Judgment. </span> </p> <p> <span>   </span> </p> <p> <span> Once a moving party is confident that no additional information is needed to ensure success on at least one of their main points, they may motion for summary judgment so they can continue on the matters that are still in controversy. </span> </p> <p> <span>   </span> </p> <p> <span> How To File for Summary Judgment </span> <span> ? </span> </p> <p> <span>   </span> </p> <p> <span> To file a Motion for Summary Judgment, you will need to prepare the following documents: </span> </p> <p> <span>   </span> </p> <p> <span> ·      Notice of Motion for Summary Judgment and Motion for Summary Judgment </span> </p> <p> <span>   </span> </p> <p> <span> ·      Memorandum of Points and Authorities in Support of Motion for Summary Judgment </span> </p> <p> <span>   </span> </p> <p> <span> ·      Declaration in Support of Motion for Summary Judgment </span> </p> <p> <span>   </span> </p> <p> <span> ·      Statement of Uncontroverted Facts and Conclusions of Law </span> </p> <p> <span>   </span> </p> <p> <span> ·      Proposed Judgment </span> </p> <p> <span>   </span> </p> <p> <span> ·      Proof of Service by Mail </span> </p> <p> <span>   </span> </p> <p> <span> Summary Judgment Procedure in Massachusetts </span> </p> <p> <span>   </span> </p> <p> <span> Procedure in Summary Judgment is tricky because each court in Massachusetts (Probate and Family, District Court, Superior Court, Housing Court, etc.) have their own rules regarding filing and timed deadlines. </span> </p> <p> <span>   </span> </p> <p> <span> Normally, a moving party sends the opposition their motion for summary judgment and the opposition gets a certain number of days to respond to the motion. </span> </p> <p> <span>   </span> </p> <p> <span> After the Motion and Opposition are filed, a hearing date will be scheduled by the court. </span> </p> <p> <span>   </span> </p> <p> <span> A litigant must keep in mind, that if any part of their motion does not prove that there is “no genuine issue as to any material fact,” the motion will fail. </span> </p> <p> <span>   </span> </p> <p> <span> Bentley Law Group’s Approach to Summary Judgment </span> <span> . </span> </p> <p> <span>   </span> </p> <p> <span> At Bentley Law Group, our lawyers have over three decades of experience in handling these Summary Judgment Motions and Opposing Summary Judgment Motions. </span> </p> <p> <span>   </span> </p> <p> <span> Attorney Ian S. Kahanowitz has never lost a Summary Judgment motion in his three decades of practicing law. </span> </p> <p> <span>   </span> </p> <p> <span> As a caring practitioner, Attorney Kahanowitz goes the distance for his clients in researching and applying the law to the facts in the Summary Judgment Process. </span> </p> <p> <span>   </span> </p> <p> <span> At Bentley Law Group, we know that your case is important, and clients need tough lawyers fighting for them in Summary Judgment motions. </span> </p> <p> <span>   </span> </p> <p> <span> Give us a call and let us guide you through “Demystifying the Summary Judgment” process. </span> </p> </div> Tue, 26 Sep 2023 12:30:47 GMT https://www.bentleylawgroupllc.com/demystifying-summary-judgment-massachusetts-rules-of-civil-procedure-rule-56 thumbnail main image https://www.bentleylawgroupllc.com/appeals <div data-rss-type="text"> <h3> <span> <span> Appeals </span> </span> </h3> </div> <div> <img src="https://cdn.hibuwebsites.com/68ab7710e70940eda025332bb1bd61a6/dms3rep/multi/bentley-law-group-llc-hero-home.jpg"/> </div> <div data-rss-type="text"> <p> <span> Attorney Ian S. Kahanowitz has a successful track record of representing clients on appeal in both state and federal court. Attorney Kahanowitz prosecutes and defends appeals in all areas of our practice, including but not limited to, tax disputes, criminal appeals, contract disputes, landlord-tenant disputes, commercial landlord-tenant disputes, family law issues, and civil disputes. <br/> </span> </p> <p> <br/> </p> <p> <span> Since success on appeal is crucial in identifying and preserving legal issues at the trial level, but also understanding the nuanced and distinct processes of the appellate courts, both trial and appellate experience is vital. Attorney Kahanowitz has that experience. <br/> </span> </p> <p> <br/> </p> <p> <span> Attorney Kahanowitz goes the extra step in deep research to find the laws and cases that will serve justice for his clients who did not get a favorable decision at the trial level. <br/> </span> </p> <p> <br/> </p> <p> <span> Clients that engage us at the trial court level frequently rely on Attorney Kahanowitz to represent them on appeal, but Bentley Law Group also welcomes new clients for the sole purpose of prosecuting or defending an appeal on their behalf. <br/> </span> </p> <p> <br/> </p> <p> <span> Attorney Kahanowitz appears before the Massachusetts Appeals Court and has successfully appeared in the U.S. Court of Appeals for the First Circuit. <br/> </span> </p> <p> <br/> </p> <p> <span> Attorney Kahanowitz has efficiently achieved favorable results for its clients on appeal involving a broad array of legal issues. <br/> </span> </p> <p> <br/> </p> <p> <span> Several of our cases have involved issues of first impression resulting in favorable decisions, especially during the pandemic. </span> </p> </div> Thu, 21 Sep 2023 12:21:10 GMT https://www.bentleylawgroupllc.com/appeals thumbnail main image https://www.bentleylawgroupllc.com/best-way-to-settle-a-difficult-case <div data-rss-type="text"> <h3> <span> Settling a difficult Case and Appeals </span> </h3> </div> <div> <img src="https://cdn.hibuwebsites.com/68ab7710e70940eda025332bb1bd61a6/dms3rep/multi/bentley-law-group-hero-modifications.jpg"/> </div> <div data-rss-type="text"> <p> <span> Grandstanding in a courtroom looks compelling on TV, but a vast proportion of real-life cases come to a resolution through settlements even before the case goes to the trial level. <br/> </span> </p> <p> <span> <br/> </span> </p> <p> <span> Attorney Kahanowitz has brokered hundreds of settlements in tax cases, financial institution and customer disputes, family law cases, real estate cases, landlord tenant disputes, commercial landlord tenant disputes, contract disputes, and with insurance companies for personal injury. disputes. <br/> </span> </p> <p> <span> <br/> </span> </p> <p> <span> Attorney Kahanowitz is extremely aggressive in negotiating successful settlements for his clients rather than leaving the final decision in the hands of the court at trial. </span> </p> <p> <span> <br/> </span> </p> <p> <span> Attorney Kahanowitz uses the facts in a given case and relentlessly pursues negotiations with the opposing side. This allows his clients to get compensation and ensure accountability on their own terms. <br/> </span> </p> <p> <span> <br/> </span> </p> <p> <span> At Bentley Law Group, we have a wealth of experience with settlement negotiations throughout Massachusetts. </span> </p> <p> <span> . </span> </p> <p> <span> Parties may reach a settlement at any point during a case, and we assist with every aspect of the process, including details like: </span> </p> <ul> <li> <span> Child Support payments </span> </li> <li> <span> Parenting time </span> </li> <li> <span> division of assets </span> </li> <li> <span> alimony </span> </li> <li> <span> Amount of Interest Due on loans <br/> </span> </li> <li> <span> Deadlines for Payment to Financial Institutions <br/> </span> </li> <li> <span> Return or Replacement of Property </span> </li> <li> <span> Child Support/Parenting time <br/> </span> </li> <li> <span> Tax Liabilities </span> </li> <li> <span> Personal Injury Claims </span> </li> <li> <span> Staying in Apartment Longer for clients in an eviction process </span> </li> <li> <span> Debt Payments </span> </li> <li> <span> DUI cases <br/> </span> </li> </ul> <h2> <span> Proven Client Commitment </span> </h2> <p> <span> Though they often seem easier than a court battle, settlements are far from simple. The other side will push for their own terms, and you want a representative who can effectively and boldly pursue your goals for the final resolution. <br/> </span> </p> <p> <span> <br/> </span> </p> <p> <span> You need a tough negotiator who will get you the results you deserve who will leverage your interests at the bargaining table. <br/> </span> </p> <p> <span> <br/> </span> </p> <p> <span> When Bentley Law Group takes your case, you get support from professionals like Attorney Ian S. Kahanowitz who served as the lead negotiator for Citizens Bank in financial matters, and individual clients in many areas of law for three decades. </span> </p> <p> <span> <br/> </span> </p> <p> <span> Discover the difference that our efforts at Bentley Law Group can make in your situation by calling today for your free case review. </span> </p> <p> <span> <br/> </span> </p> </div> Wed, 20 Sep 2023 15:00:54 GMT https://www.bentleylawgroupllc.com/best-way-to-settle-a-difficult-case thumbnail main image