Attorney Kelsey will be appearing on Money Matters with Scottie McCall on Friday, April 30, 2010 at 3:30 P.M.
Attorney Kelsey will discuss financial issues in divorce. You can watch the interview live on the Money Matters website on Friday, April 30, 2010. Or listen at 1120 WBNW.
UPDATE: Attorney Kelsey's interview is now available here:
Friday, February 3, 2012
What County do I File my Divorce in?
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In Massachusetts, the county that you file your Joint Petition for Divorce or your Complaint for Divorce in is controlled by M.G.L. c. 208 s 6.
Assuming that Massachusetts has jurisdiction to hear your case (which we explain in this previous post), you should file in the probate court in the county where either you or your spouse lives, unless one of you still resides in the county where you last lived together, in which case you should file in that county.
To figure out how that standard applies in your case, answer these questions to figure out where you should file:
Question 1: Do you or your spouse still live in the county where you last lived together? If Yes, then file in that county. If no, then continue to Question 2.
Question 2: Do you both live in Massachusetts? If Yes, then you can file in either the county where you live, or the county where your spouse lives. If no, then continue to Question 3.
Question 3: Does one of you live in Massachusetts? If Yes, then you can file in the county in Massachusetts where one of you lives. If No, then you should file in the county that you last lived together in Massachusetts.
If you never lived together in Massachusetts and neither of you lives in Massachusetts now, then review our previous post on jurisdiction because there is a good chance, you cannot file in Massachusetts.
There are Two Exceptions to the above described rules:
Exception 1: In the event of hardship or inconvenience to either party, the court having jurisdiction may transfer such action for hearing to a court in a county in which such party resides.
Exception 2: In cases where this is a potential conflict of interest, the court having jurisdiction may transfer the action to another county. For example, if a court employee is getting divorced it would not be fair to them or their spouse to have the case heard in the court where the employee works.
Wednesday, February 1, 2012
Divorces with Disabled Spouses or Children: How a Special Needs Trust Can Help!
How a Special Needs Trust Can Help in cases with a Disabled Spouse or Child!
Spouses and children receiving court-ordered support may also be eligible for needs-based public benefits such as MassHealth (Medicaid) and Supplemental Security Income (SSI). Both programs are income sensitive, and support that is directly received, including child support to the custodial parent, can cause these benefits to be reduced or terminated. However, if a Court orders the support to be paid directly into a Special Needs Trust (SNT) drafted with certain provisions, then the support would not be countable as it goes into the trust. Distributions from the trust can then be structured in such a way as to have minimal or no effect whatsoever on public benefits received by the beneficiaries.
In a recent case, in which Kelsey & Trask and I share a client, a severely disabled woman in her late 30s, required a Personal Care Attendant through MassHealth to remain in her home. I created a SNT for her, and Attorney Kelsey obtained a Court order for the alimony to be paid directly into the SNT. To our surprise, MassHealth then rejected the procedure.
The agency first claimed that the trust had to be a Medicaid “payback” trust, which is not required by the law or regulations. I took the matter to a Fair Hearing, and the agency then changed its position and claimed that the Court does not have authority to order the alimony to be paid into a trust in order to be exempt as income for MassHealth eligibility. The Hearing Officer rejected all of the agency’s arguments, determined that Court-ordered alimony into a properly drafted SNT would not be countable as income, and reversed the benefit termination decision.
We are increasingly hearing that the MassHealth agency is being very aggressive in attempting to force extra-regulatory restrictions on the use of trusts under these circumstances. This case had a fortunate outcome, and it is important that if others face the same trust counting challenge by the MassHealth agency, that they not necessarily accept the agency’s decision as being right or legal. However, sometimes the client would feel it more helpful and less expensive to comply rather than appeal. The pros and cons of that option should be analyzed in each individual case.
A copy of the hearing officer’s decision is available here.
Is it a Crime if my Spouse Reads my E-mail?
The short answer is that your spouse has probably not violated any law by reading your e-mail, even if it is against your wishes. The law of technology is constantly changing, though, and you may want to think twice before snooping in your spouse's email.
The current law varies from state to state and you might be subject to criminal charges as the law catches up with technology. In Massachusetts, the First Circuit Court of Appeals in 2004 ruled that e-mail snooping was not a violation of the wire-tapping statute, and therefore not a crime under that law. If combined with concerning communications, e-mail snooping may be enough to trigger the criminal harassment statute in Massachusetts, though this would depend more likely on the nature of the other communications.
There is a Federal Law, the Electronic Communication Protection Act (ECPA), that prohibits interception of an e-mail while it is being transmitted. However, ECPA does not prohibit snooping in your e-mail inbox or outbox (i.e. before or after the e-mail has been transmitted).
Although snooping is not considered "hacking" under the ECPA, it may be under some state laws. In Michigan, prosecutors are attempting to apply their anti-hacking statute to a case of a Husband accessing his Wife's account to gain information about an affair. Although, many experts are quoted in a Today story as questioning this application of a law intended for a different purpose, the case raises interesting questions about two issues: What expecation of privacy does a Wife have on a shared computer (especially where her passwords were written down next to the computer) and how has the "snooping" damaged the Wife?
The damage to the Wife is certainly different than the damage experienced by a victim of identity theft or other more typical security "hacks", but this doesn't mean she is not damaged as well. It may be the case that applying the anti-hacking statute to a domestic case is not a good fit, but it is time for the legislature to catch up with today's technologies and impose either civil or criminal sanctions on e-mail snooping. The fact that such behavior is very often associated with controlling and/or violent domestic relationships should be enough to warrant prohibition of these activities.
If you are considering this type of snooping, even if you live in a jurisdiction where it is not against the law, you should consider the possible backlash. A Family Court Judge could consider this threatening behavior or otherwise hold it against you and the backlash could be much more damaging than any information discovered (even if it was admissible).
If you are concerned about your e-mail being wrongfully accessed, read our previous post about protecting your privacy.
You can view the Today Story video below:
The current law varies from state to state and you might be subject to criminal charges as the law catches up with technology. In Massachusetts, the First Circuit Court of Appeals in 2004 ruled that e-mail snooping was not a violation of the wire-tapping statute, and therefore not a crime under that law. If combined with concerning communications, e-mail snooping may be enough to trigger the criminal harassment statute in Massachusetts, though this would depend more likely on the nature of the other communications.
There is a Federal Law, the Electronic Communication Protection Act (ECPA), that prohibits interception of an e-mail while it is being transmitted. However, ECPA does not prohibit snooping in your e-mail inbox or outbox (i.e. before or after the e-mail has been transmitted).
Although snooping is not considered "hacking" under the ECPA, it may be under some state laws. In Michigan, prosecutors are attempting to apply their anti-hacking statute to a case of a Husband accessing his Wife's account to gain information about an affair. Although, many experts are quoted in a Today story as questioning this application of a law intended for a different purpose, the case raises interesting questions about two issues: What expecation of privacy does a Wife have on a shared computer (especially where her passwords were written down next to the computer) and how has the "snooping" damaged the Wife?
The damage to the Wife is certainly different than the damage experienced by a victim of identity theft or other more typical security "hacks", but this doesn't mean she is not damaged as well. It may be the case that applying the anti-hacking statute to a domestic case is not a good fit, but it is time for the legislature to catch up with today's technologies and impose either civil or criminal sanctions on e-mail snooping. The fact that such behavior is very often associated with controlling and/or violent domestic relationships should be enough to warrant prohibition of these activities.
If you are considering this type of snooping, even if you live in a jurisdiction where it is not against the law, you should consider the possible backlash. A Family Court Judge could consider this threatening behavior or otherwise hold it against you and the backlash could be much more damaging than any information discovered (even if it was admissible).
If you are concerned about your e-mail being wrongfully accessed, read our previous post about protecting your privacy.
You can view the Today Story video below:
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