Revocable Trust vs. Irrevocable Trust

Many of my clients ask me the difference between a revocable trust and an irrevocable trust. Although there are several differences between the two trusts, the main difference is that a revocable trust can be modified during an individual's lifetime, while an irrevocable trust cannot be modified. Both types of trusts protect an individual's assets from probate. However, an irrevocable trust will protect an individual's assets from creditors, such as Medicaid.

It is very important to have the correct type of trust for your situation. This is especially true for elderly or sick individuals. Please contact Attorney Theresa Gomes to discuss your estate planning options.

Motion to Suppress Evidence

A motion to suppress is written motion filed with the court by the defendant in the case.  A motion to suppress is argued in front of the judge with both sides supporting their own position. In addition, an evidentiary hearing may be requested by the defendant. During an evidentiary hearing, witnesses, such as police officers may be required to testify. The witnesses will be subject to both direct and cross-examination. After the hearing, the judge will make a ruling on the motion.

Under the United States Constitution, Amend IV, and Article 14 of the Massachusetts Declaration of Rights, a defendant has a right to be free from illegal searches and seizures. In addition, the search of the defendant’s person or property must have been conducted by someone acting on behalf of the “state”, such as police officers or their agents, in order for a defendant’s rights to be violated. If a search and seizure is conducted by a private entity, then a defendant cannot claim that his rights have been violated.

A defendant must have also an expectation of privacy in the area that has been searched.  A defendant cannot claim that the police illegally searched a stolen car that he operated, nor can a defendant claim that he has an expectation of privacy to things that public also has access to, such as a trash barrel placed outside.

A defendant must also have “standing” in order to claim that his rights have been violated.  In Massachusetts, a defendant can claim that he has standing it if he is charged with a possessory crime or was present when the item in question was seized.  “When a defendant is charged with a crime in which possession of the seized evidence at the time of the contested search is an essential element of guilt, the defendant shall be deemed to have standing to contest the legality of the search and the seizure of that evidence”. Commonwealth v. Amendola, 406 Mass. 592, 610 (1990). The law in Massachusetts is different from the Federal law, which does not provide this type of “automatic standing” to a defendant.

If you believe that you were illegally searched or seized, please contact Attorney Gomes at 617-524-6600 for a consultation.

Is Divorce Mediation Right For You?

Most couples that are considering divorce believe their only option is to go through the divorce process in the Probate and Family Court. However, many divorcing couples in Massachusetts can benefit from Divorce Mediation. Although not all couples are able to resolve their issues through Divorce Mediation, most are able to complete the process and come to an agreement that they are both satisfied with. It is recommended that most couples meet with a Divorce Mediator in order to learn about the process and determine if Divorce Mediation is right for them. Please contact Attorney Theresa Gomes at (617) 524-6600 to set up a one hour consultation if you are considering Divorce Mediation in Massachusetts.

Second Parent Adoption Post DOMA

Several of my clients have asked me whether they need to have a second parent adoption in Massachusetts since DOMA has been overturned. The simple answer to this question is, Yes. Even though gay and lesbian marriages are now recognized federally, there are still a number of states that do not recognize gay marriage. This may present problems for married couples travelling out of state with their children. Unlike gay marriage, gay adoption is recognized in most states and therefore the parental rights of the parties cannot be challenged.

In addition, after speaking with an esteemed Probate Judge in Middlesex County, it is clear that judges prefer to have the couple adopt their children so that there is no confusion about the intent of the parties to both be parents of the child.

Please feel free to consult Attorney Gomes if you have any questions about second parent adoption at 617-524-6600.

Divorce Mediation in Massachusetts

The question I hear most often is whether Divorce Mediation is appropriate for every divorce in Massachusetts. The answer to that question is No, Divorce Mediation is not appropriate in every case. However, most cases can benefit from Divorce Mediation. Even if the parties are unable to agree on every single aspect of their divorce, they may be able to resolve the majority of their issues in mediation. The only cases that may not be appropriate for Divorce Mediation are those in which there is serious domestic violence between the parties. Otherwise, Divorce Mediation can be a cost effective way for parties to divorce and still maintain a relationship with their spouse, especially when there are children involved.

Please contact Attorney Theresa Gomes at 617-524-6600 if you would like to hear more about the benefits of Divorce Mediation in Massachusetts.