RALPH D. GANTS is confirmed AS CHIEF JUSTICE OF THE MASSACHUSETTS SUPREME JUDICIAL COURT

Gants_JAfter a nomination by Governor Patrick Justice, Gants was confirmed by the Governor’s Council with a vote of 8-0 to be the Chief Justice of the highest Court in Massachusetts.  Justice Gants is a highly regarded Associate Justice of the SJC and former Superior Court judge, who will fill the vacancy created by the retirement of Chief Justice Ireland on July 25, 2014. 

Governor Patrick said of Justice Gants:

“It is my great honor to nominate Ralph D. Gants to serve as the Chief Justice of the Supreme Judicial Court.  Justice Gants is a brilliant jurist with a passion for justice and a keen understanding that the law needs to make sense in the lives of real people. As Chief Justice, he will work tirelessly to move the Supreme Judicial Court forward and to maintain its prominence as a model of jurisprudence for our nation and the world.”

Gants has served on the SJC since 2009 after he was elevated from the state Superior Court where he was appointed by Governor Weld. In his 33-year legal career, Gants worked in the U.S. Attorney’s office, as an assistant to the director of the F.B.I., as a defense attorney and has taught classes at New England Law Boston and Harvard University.  Justice Gants has been co-chair of the Massachusetts Access to Justice Commission and Chair of the SJC Standing Committee on Model Jury Instructions on Homicide.  His leadership on the Access to Justice Commission has been regarded as resulting in “programs and new ideas that will improve the Commonwealth’s court system, making courts accessible and understandable to all litigants in all types of legal matters.[1]”  He is a graduate of Harvard College (A.B. summa cum laude, Economics, 1976), Cambridge University, Cambridge, England (Diploma in Criminology, 1977) and Harvard Law School (J.D. magna cum laude, 1980). 

Justice Gants will be Governor Patrick’s sixth appointment to the state’s highest court

Gants said he would like to see the courts become better at problem solving, and move towards more individualized sentences for those convicted. Gants wants to see judges be able to dole out sentences that are proportional to the crime and the individual, and said mandatory sentences get in the way of that.

 

Many other states are moving away from mandatory sentencing, a move which Gants supports in Massachusetts. He commented that public sentiment on sentencing, drug cases in particular, is shifting largely because what has been done is not working.

 

“I have been there, having to impose sentences I thought were longer than I thought appropriate,” Gants said.

 

 



[1] Boston Bar Association.  See http://www.bostonbar.org/membership/publications/news-release?ID=271

 

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When Alimony Stops

Massachusetts alimony laws changed drastically in March 2012.  One of the big changes was the ability to modify life time alimony orders[1].  Alimony used to only have one duration, for life.  Those currently paying alimony should know how changes in the law could affect their alimony payments.

Lifetime Alimony Time Limits

The new time limits for previously lifetime awards of alimony are easily described in the chart below:

Length of Marriage in Years Maximum Years of Alimony Maximum Months of Alimony
1 0.5 6
2 1 12
3 1.5 18
4 2 24
5 2.5 30
6 3.6 44
7 4.2 51
8 4.8 58
9 5.4 65
10 6 72
11 7.7 93
12 8.4 101
13 9.1 110
14 9.8 118
15 10.5 126
16 12.8 154
17 13.6 164
18 14.4 173
19 15.2 183
20 16 192
20 or more Indefinite Indefinite

Other Stopping Points For Alimony

The three primary ways in which alimony may be terminated early are: (1) retirement of the paying spouse, (2) remarriage of the recipient spouse, or (3) death of either person.

Retirement

Alimony will end when the payor spouse reaches retirement age, even if the spouse could or does continue working. Retirement age is determined by the United States Old Age, Survivors, and Disability Insurance program and is currently 66 years old.

Remarriage

Alimony will terminate upon the remarriage of the recipient spouse.

In the event of the payor’s remarriage, income and assets of the payor’s new spouse will not be considered in a redetermination of alimony.

Death

Alimony will terminate upon death of either person.  However, the court may require the payor spouse to provide life insurance or another form of security for payment of future alimony to the recipient spouse in the event the payor dies owing alimony.

 



[1] Known as General Term Alimony

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Why You Should Have A Professional Write Your Will

 

last_will_and_testamentYour Last Will and Testament is an important document that your loved ones will have to handle upon your passing.  It’s not uncommon for me to meet with clients struggling with tensions from poorly written wills. You should be sure, for their sake and your own, that your will is put together well and up to date. My clients often think of writing wills around important events, such as having a baby, entering retirement, or when their children go to college, but everyone should have an up-to-date will written by an attorney.  The last thing you want to happen is for your heirs to find out the discount will you purchased online gave poor directions and the will you left is invalid.

The Current Law

Do you know the current changing landscape of Massachusetts probate law?

Massachusetts probate law (laws effecting inheritance) have had two major overhauls recently: first with the passage of MUPC (Massachusetts Uniform Probate Code) effective March 31, 2012 and then with MUTC (Massachusetts Uniform Trust Code) effective July 8, 2012.  Many of the changes in the new laws will be different then what has traditionally been law in Massachusetts.

A Will Must Be Free of Errors

If a mistake is made in your will or if the language is not plain and clear regarding your wishes, you will not be around to clarify yourself or make corrections. Having a professional guide you through this process will correct these common mistakes:

  • Not letting loved ones know where the will is kept
  • Forgetting to update your will, especially after a major life change
  • Improperly adding to your will, potentially nullifying the entire document
  • Forgetting to sign the will

Your Assumptions for Writing a Will Are Likely Incorrect

If you choose to write your own will, you will likely use many false assumptions that could endanger the validity of your will.  Some examples are:

  • If you will property to a friend or relative today, what happens if that property is not there when your will is executed?
  • If you will property to an heir, what happens if you outlive that heir?
  • If you outlive your children or one of your children, what happens?
  • If you leave your family home, who is responsible for the expenses of keeping up the property?

This is a brief list that could go on.  An attorney trained in drafting a will is able to anticipate and answer these questions and guide you through the process.

Unclear Language Used in a Will May Cause Confusion

Even if you spend a lot of time on your DIY will, it is likely to have unclear language.  An attorney will use standard language used by judges, clerks, and understood in the court system.  Attorneys have been trained in the proper way to draft a will, and what specific phrases accomplish a particular goal.

Wills Are Complicated Instruments

Online DIY wills do not adequately consider the planning implications of the variety of family structures and scenarios prevalent today. Any number of these scenarios call for different planning strategies:

  • Multiple Children
  • Adult Children and Grandchildren
  • Divorce
  • Remarriage
  • Putting your home in a trust
  • Children with special needs

Massachusetts Has Strict Will Signing Requirements

Your handwritten will or a will executed without the proper signatures is invalid.  In fact, there are many necessities in a will signing ceremony that must all happen in order to have a valid will.

For the relatively low cost of having a will executed by a professional, it is well worth the sparing your loved ones any headaches upon your passing.

 

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An Act Decriminalizing Marijuana

800px-Massachusetts_State_House-150x150This week, I’ll take a look at what the 2008 decriminalization of marijuana means with a few highlights from major cases.  In a later post, I’ll take a look at medical marijuana.

On November 4, 2008, state voters approved a ballot initiative to decriminalize the possession of marijuana.  Four years later, state voters approved an initiative to eliminate criminal and civil penalties for the use of medical marijuana.

Decriminalization

Marijuana is decriminalized for all citizens for personal possession for any amount under one ounce[1].  Let’s take a closer look at these terms.

  • Decriminalized – is the removal of only criminal penalties not civil penalties or forfeiture.
    • Essentially, this means that a person will not go to jail or be arrested for the mere possession of marijuana under one ounce.
    • Decriminalization does not exempt a person from penalties for possession with intent to distribute[2].  (For example, if the ounce of marijuana was separated into eight 1/8 ounce bags, as opposed to one individual bag, this may raise to the level an intent to distribute.).
    • If detained by a police officer, a person possessing marijuana will have to forfeit the marijuana and is subject to a $100 fine.
    • Since marijuana is decriminalized, the odor of burnt marijuana alone does not provide the police with reasonable suspicion that criminal activity is underway[3].
      • A person may not be searched or stopped based on marijuana odor alone.
      • Personal Possession – the marijuana is meant for the person holding it and only that person.
        • Intent to distribute is broader than intent to sell.  If a person intends to give marijuana for free this action may still be considered distribution
        • One Ounce- Is just that, the weight of the marijuana.  It is a crime to possess 1.1 ounces of marijuana (or any amount over one ounce).
        • Also note, individual towns have the authority to set penalties above and beyond what is expresses in the state bill for someone caught smoking marijuana in public.

There is also a special provision for citizens under the age of 18.  They will have to complete a drug awareness program.

 

One Ounce or Less[4] Greater Than One Ounce Operating a Motor Vehicle
Over 18 Years of Age $100 fine and forfeiture  of Marijuana Criminal Offense. No Change in Penalty Criminal Offense. No Change in Penalty
18 Years of Age or Younger $100 fine, forfeiture  of marijuana, and the completion of a drug awareness program Criminal Offense. No Change in Penalty Criminal Offense. No Change in Penalty

 

Different rules apply for medical marijuana users, and their care givers.  This topic will be covered in a later blog.



[1] https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXV/Chapter94C/Section32L

[3] See Commonwealth v. Benjamin Cruz 459 Mass. 459

[4] Without intent to distribute

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Apartment Snow Shoveling

Winter 20140220_144611With all the snow falling this winter, it’s a good idea to know if, or when, you’re responsible for shoveling.  As a general rule, if you are a tenant, you are not responsible for shoveling the entrances and exits of your apartment unless you specifically contracted to do so with your landlord.  This article will also review some specifics for Boston and some surrounding towns. 

Massachusetts State Law

Some laws apply to all towns and cities in Massachusetts.  Your town or city likely has more detail on the exact timing and path width of snow clearance following a snow fall[1].  At a minimum the state mandates that an “owner maintain all means of egress at all times in a safe, operable condition and shall keep all exterior stairways, fire escapes, egress balconies … free of snow and ice.[2]”  Practically speaking, your landlord is responsible for removing the snow and ice from both the front and rear entries of your home.  You should refer to your local town or city ordinances for the exact window of time in which a landlord must comply.  As a general rule, the more populated the area you live in, the sooner the snow will need to be cleared.

Boston

Boston follows along the same lines, stating “no owner, manager … of a building, estate, or land abutting on a sidewalk shall place or suffer to remain in place for more than three (3) hours after snow fall has ended between sunrise and sunset any slush or any loose, granular, or packed snow upon such sidewalk[3].”

 

 

City Time line Width Fines Website to report
Boston Within 3 hours or 3 hours after sunrise if snow fell overnight Minimum of 42 inches wide $50 – $200 depending on unit type and snow clearence. http://www.cityofboston.gov/mayor/24/
Somerville Homeowners have six hours between sunrise and sunset after the snow stops to shovel sidewalks Minimum of 42 inches wide $25 fine for the 1st offense, $50 for the 2nd and $100 for each subsequent offense
Malden Twenty-four hours after such snow or ice accumulates on the sidewalk A minimum passage of 36 inches in width Between $25 and $200 http://www.cityofmalden.org/Resident-Issue-Reporting/
Chelsea Within 24 hours of the when the snow stopped falling A safe and comfortable width of at least 24 inches Fines and costs to remove snow are applicable

 Other Resources

Wheelchair Users: You may consider reading this article from WBUR[4].
Help with shoveling:  http://neighborsforneighbors.org/ 



[1] See chart below for a few cities.

[4] http://hereandnow.wbur.org/2014/02/21/wheelchair-winter-obstacles

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Apartment Building Sales – A Tenant’s Perspective

You’ve just moved into the apartment of your dreams– or maybe the best apartment your dreams can afford. Then you get a notice: your apartment is being sold.  What are your rights and responsibilities now that the landlord is changing?  Can you maintain your lease?  What happens to your security deposit?  How long do you have to move out?

My Landlord Has Passed Away, What Happens To My Lease?

A common situation occurs when your landlord passes away and leaves relatives in charge of your building.  The Personal Representative[1] of a landlord may even begin a sale[2] of the property to a third party. Such a sale does not extinguish your rights or any liens on the property. Town of Tisbury v. Hutchinson, 338 Mass. 514 (1959).  Generally, your lease rights must be disposed of before the Personal Representative sells the building, unless the new purchaser takes the apartment title subject to your lease rights. It’s worth remembering that any seller has a duty to disclose your lease to a new purchaser. See MGL c 184 s21.

However, as a lessee you have no right to question the title of your landlord.  Connolly v. Kilcourse, 285 Mass. 398, 399 (1934).

 

What Happens If Your Landlord Is Alive And Well But Is Still Selling Your Apartment?

 

Your Security Deposit

The security deposit and/or last month’s rent given by you to your landlord is your money.  Upon sale, the old landlord shall transfer your money to the new landlord .  However, very specific provisions must be followed: the new landlord must notify the tenant within forty-five days from the date of transfer that the security deposit was transferred to the new landlord and that he is holding the security deposit.[3] M.G.L c. 186 s15b (5).  As a practical (though not legal) precaution, you may want to consider trying to recover your security deposit from your old landlord.  This is often the simplest and fastest way to recover your funds.  Also, it is often advisable to write a letter to your landlord demanding the return your security deposit within 30 days time.  This demand letter will help to begin the ticking of certain legal clocks.

Even if your old landlord does not transfer your security deposit to the new landlord (as he is required to do) the new landlord shall “without regard to the nature of the transfer, assume liability for payment of the security deposit to the tenant.”  M.G.L c. 186 s15b (5)(c).  The new landlord may opt to give you free rent in the value equivalent to your security deposit if you are still in the apartment[4].  M.G.L c. 186 s15b (5).

But I Don’t Have A Lease, I’m A Tenant At Will. What Are My Rights?

As a tenant at will, you have no lease and you may have a written or even oral agreement for the rental.  The good news is your tenancy isn’t automatically terminated.  M.G.L. c. 186, § 13.  You may stay according to the provisions of your old arrangement. M.G.L. c.186 s.17.  During a sale, as normally happens with tenants at will, either the landlord or the tenant may terminate the rental arrangement at any time.  All that is required is 30 days written notice or one full rental period, whichever is longer.  No reason is required to terminate an at-will tenancy. If your landlord wants to raise your rent, he must send you a proper legal notice terminating your tenancy, and then make you an offer to remain in the apartment for the increased rent.  Often the rules for subsidized housing are different.



[1] Formally Administrator or Executrix.  The person administrating an estate.

[2] Also called a Fiduciary Sale.

[3] “Such notice shall also contain the lessor’s name, business address, and business telephone number, and the name, business address, and business telephone number of his agent, if any. Said notice shall be in writing.” M.G.L c. 186 s15b (5).

[4] The liability imposed by this paragraph shall not apply to a city or town which acquires title to property pursuant to chapter sixty or to a foreclosing mortgagee or a mortgagee in possession which is a financial institution chartered by the commonwealth or the United States. M.G.L c. 186 s15b (5)(c).

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