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Frequently Asked Questions

CRIMINAL LAW:

  • Q: When should a person consult with an attorney?

  • Q: If a person is innocent, why does he/she need a lawyer?

  • Q: What should one do if police say they want to "talk" or have one come in for questioning?

  • Q: What happens if a person is arrested?

  • Q: What happens during a Drunk Driving Stop?

  • DIVORCE:

  • Q: Who can file for divorce in Massachusetts?

  • Q: Which county should the divorce be filed?

  • Q: Is there any advantage to filing a divorce "first"?

  • Q: Must "grounds" for a divorce be alleged?

  • Q: What is a legal separation?

  • Q: How is property divided in a divorce case?

  • Q: How are children handled in the Family Court?

  • Q: How long does it take to obtain a divorce?

  • Q: Who will get custody of the children?

  • Q: Is alimony available?

  • Q: What is Legal Custody as opposed to Physical Custody?

  • Q: How is custody determined?

  • Q: What is a typical visitation schedule?

  • Q: Can custody arrangements, child support or visitation ever be changed after the divorce?

  • Q: How is child support determined?

  • Q: Is child support taxable?

  • Q: How long is Child Support payable?

  • PERSONAL INJURIES:

  • Q: What should I do if I am in a car accident?

  • Q: How do the bills get paid?

  • Q: What about "pain and suffering" damages?

  • Q: How are "pain and suffering" damages determined?

  • Q: How can I help my case?

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    CRIMINAL LAW:

    Q: When should a person consult with an attorney?
    A: As soon as you become aware that the police or a law enforcement investigator is investigating you. The earlier you contact a lawyer the better. A lawyer can intervene on your behalf and advocate and protect your rights. If you are going to be arrested, an attorney can often arrange for your surrender at a time which minimizes embarrassment to you and your family. Retaining counsel also prevents the police from interrogating you.

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    Q: If a person is innocent, why does he/she need a lawyer?
    A: Innocent people unfortunately get accused, arrested and even convicted of crimes. Also people who may have committed one crime often get accused of committing additional or more serious crimes. Whether innocent or guilty, you must make sure your rights are protected-including your right to remain silent.

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    Q: What should one do if police say they want to "talk" or have one come in for questioning?
    A: You should try to remain calm and be respectful and polite. Do not argue. Do not discuss anything, however. Give the police or investigator your name and identifying information. "Statements made at this time can and WILL be used against you" Tell the police you wish to speak to a lawyer first. This should end any further inquiry.

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    Q: What happens if a person is arrested?
    A: You will be hand-cuffed and brought to a police station and "booked". There may be fingerprinting and photographs taken . Any criminal record you may have will be looked up. You will be given a chance to make a phone call which you may use to call an attorney or a family or friend who then, in turn, may call for an attorney to represent you. If it is a drunk driving arrest you may be asked to take a breathalyzer test-a machine which seeks to measure the amount of alcohol in your system.

    A Bail Commissioner may be summonsed by the police to determine if you should be required to post more than the standard $40.00 bail fee or whether or not you should be held in custody pending appearance in Court. Any bail posted above and beyond the $40.00 bail fee will be returned to you or to the person who paid it so long as the arrestee makes all of his or her court appearances during the case.

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    Q: What happens during a Drunk Driving Stop?
    A: You may be asked to take Field Sobriety Tests at roadside. They are coordination tests which are given to a suspect to determine how or if they are impaired by alcohol consumption. They are potential pieces of evidence to be used against you in Court. You do not have to take any such tests and there's no penalty if you decline (i.e. no license suspension). On the other hand, by obtaining a driver's license, you have consented to taking a breathalyzer if asked to do so by a police officer. Thus, if you say "no", your driver's license will be suspended for at least 120 days. A .08 reading means that, on that evidence alone, a jury can find you guilty at a later trial. It doesn't take much to register such a reading so be careful!

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    DIVORCE:

    Q: Who can file for divorce in Massachusetts?
    A: In order to file a Massachusetts divorce case, either (1) the grounds for divorce must have occurred in Massachusetts and one spouse is still a Massachusetts resident; or (2) the filing spouse must have been a resident of Massachusetts for one year.

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    Q: Which county should the divorce be filed?
    A: The divorce should be filed in the county where the parties last lived as husband/wife. If neither spouse is currently in that county, then the divorce may be filed where either party currently resides.

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    Q: Is there any advantage to filing a divorce "first"?
    A: No. The only difference is that the spouse filing the divorce will become the "Plaintiff" who will present his/her evidence first during the trial. The ability to go "first" can sometimes be a tactical advantage.

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    Q: Must "grounds" for a divorce be alleged?
    A: Massachusetts is a "no fault" divorce jurisdiction. Therefore, one may get divorced without specifying or alleging any particular ground. An contested or uncontested joint petition for divorce can be filed by the parties alleging "irretrievable breakdown"

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    Q: What is a legal separation?
    A: This is action by the Court where there is no wish to file for divorce but rather the parties will live separately. In an action for Separate Support, child custody, visitation, support and even spousal support may be obtained

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    Q: How is property divided in a divorce case?
    A: Massachusetts is an "equitable distribution" state. "Marital property"-subject to division by a Judge includes all of the property owned by either spouse, including gifts and inheritances. The division of the property is based upon many factors such as the respective financial conditions of the parties, their individual contributions to the marriage and their "conduct" during the marriage.

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    Q: How are children handled in the Family Court?
    A: The needs, desires and best interests of the children are considered by the judge. In fact, Massachusetts now requires that each parent complete an approved Parenting Education Course prior to the dissolution of the marriage so that issues effecting the welfare of the children can be appreciated and the ill-effects of the break-up of the family unit minimized.

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    Q: How long does it take to obtain a divorce?
    A: Unfortunately, there's no easy answer. A lot depends on the complexity of the issues to be settled or litigated and to a certain extent the reasonableness of the parties. Uncontested divorces can sometimes take a few months while hotly contested and "nasty" divorce "wars" can unfortunately take a year or more.

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    Q: Who will get custody of the children?
    A:This issue will be decided by the parties if they can agree or put before a judge for his/her determination. The judge will rule based upon the "best interest" of the child.

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    Q: Is alimony available?
    A: Yes either on a temporary basis or more permanent basis. Also, motions for one divorcing spouse (the financially better-off one usually) to contribute to the other's attorney fee obligation can be brought for a ruling in front of the Court.

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    Q: What is Legal Custody as opposed to Physical Custody?
    A: Legal custody is the legal authority to make or help make significant decisions regarding the child such as his or her health care and general well-being. Physical custody refers to where the child physically lives. These custody arrangements can be sole or shared.

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    Q: How is custody determined?
    A: Often the Court will employ a third party professional-a G.A.L. or Guardian Ad Litem who will investigate the entire situation and report back to the Court with certain recommendations as to what actually is best for the child. Visitation will be a part of the analysis.

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    Q: What is a typical visitation schedule?
    A: The non-custodial parent will often have the child every other weekend and one or two evenings per week. There are many variations however that can be worked out by the parties or determined by a judge.

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    Q: Can custody arrangements, child support or visitation ever be changed after the divorce?
    A: Yes, a Complaint for Modification may be filed seeking changes where there has been a "material change in circumstances".

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    Q: How is child support determined?
    A: Massachusetts has adopted certain guidelines which a judge must preliminarily consider. With higher income individuals, these guidelines carry less relevance in setting an appropriate amount.

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    Q: Is child support taxable?
    A: No, it is neither taxable to the receiving parent nor deductible to the paying ex-spouse.

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    Q: How long is Child Support payable?
    A: Child support is paid until a child is legally "emancipated" which is generally age 18 unless the child is a full time student and principally dependent upon the custodial parent for support in which case it can continue to age 23. A child's living in a dorm is not considered evidence of "emancipation" but marriage or enlisting in the military would be.

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    PERSONAL INJURIES:


    Q: What should I do if I am in a car accident?
    A: Try to remain calm. Stop your vehicle, try to pull over to a safe area and then turn off the engine. Determine if anyone is injured and call for an ambulance if needed. Police should be summonsed. Exchange documents with any other operators involved. Do not editorialize the situation or assess who was at fault. Don't blame anyone including yourself. Write down the facts, the applicable motor vehicle information and the names of any by-standers and/or witnesses. Draw a diagram of the scene, the positioning of the cars and the sequence of events which led to the accident. After treating for any injuries, follow up when you are able with the filing of an insurance claim after obtaining the police report.

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    Q: How do the bills get paid?
    A: An insurance claim should be filed with both your insurance carrier and the other driver's insurance carrier. Depending on coverage, your own insurance company may well pay for the property damage to your car and seek reimbursement from the responsible party's carrier or that person directly if it is found that you were not at fault. As for medical bills, these should be submitted to your own insurance carrier. They will be paid under the "no fault" (PIP) portion of your mandatory coverage. Do not be upset that even though you were not at fault, your insurance carrier is paying. They will be reimbursed in the end and you will not suffer any points or premium increases so long as you were not at fault.

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    Q: What about "pain and suffering" damages?
    A: An attorney should be retained in order to either settle on an appropriate amount to compensate for "pain and suffering" or litigate at a trial on the matter.

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    Q: How are "pain and suffering" damages determined?
    A: The system for determining a monetary value for injuries is complex and sometimes unfair. When you initially file a claim (perhaps well after the accident after you have some sense of the medical injuries) the insurance company determines a value for your case, called a reserve. As your case unfolds, this amount is subject to change. In cases with very serious injuries, the reserve may immediately be equal to the insurance policy limits (maximum coverage) of the person causing your injury. Factors figuring into this reserve include: the amount of any lost wages you suffered, the amount of the total medical bills, the seriousness of the injuries, consistency of your treatment, permanency of the injuries, scarring, previous injuries and the extent or lack thereof of the fault of the proposed responsible party. Witness credibility is also key as well as perhaps the credibility and persuasiveness of your attorney.

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    Q: How can I help my case?
    A: Cooperate with the doctor's treatment plan, attend all therapy sessions and take all prescriptions as instructed. Communicate your symptoms early and often. Don't be shy in telling the professionals how you feel so they can note it. Complaints should be documented. You should also keep a journal of your day-to-day progress so you can have a record of how your life was adversely affected by the injuries associated with the accident. Help your attorney gather the necessary bills and reports so your case can be fully documented and thus aggressively presented for settlement.

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    The material contained in this web site does not constitute legal advice or a legal opinion as to any particular matter. Nor is it intended to create an attorney-client, business or professional relationship. You should not rely on the information contained in this web site without first speaking with an attorney. No claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this web site are made.

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