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.

Contested Divorce vs. Uncontested Divorce

In Massachusetts, a divorcing couple has two options when filing for divorce. They may choose to file for a contested divorce or an uncontested divorce. A contested divorce is normally filed when the parties are unable to agree on the major issues of their divorce. An uncontested divorce is filed jointly by the parties when they are in agreement about all of the issues of their divorce.

A contested divorce can be filed by either one of the parties. In a contested divorce, one party must serve the other party with a Complaint for Divorce. After the Complaint for Divorce is served, either party may decide to go before a Judge to decide Temporary Orders. The Temporary Orders can be agreed upon jointly by the parties or the Judge may decide the terms. The Temporary Orders will cover all of the relevant issues, such as child support and a parenting plan. The Temporary Orders will be in effect until the parties have come to an agreement through a separation agreement or after a trial. During the divorce, the parties will have a number of court dates, including Motions, Pretrial Conference, and Trial. If the parties are unable to come to an agreement on the trial date, the Judge will hold a trial and all of the witnesses will testify. The Judge will then render a decision on all issues of the divorce.

In an uncontested divorce, the parties meet with each other to discuss all of the issues of their divorce. Here is a list of the major issues that the parties must come to an agreement on:

1. Child Support
2. Alimony
3. Parenting Plan
4. Division of Marital Assets & Liabilities
5. Health Insurance
6. Life Insurance

Divorce Mediation can be a very helpful way to facilitate an uncontested divorce. Once the parties have agreed on all of the issues, a Separation Agreement is drafted and is filed with the court along with a Joint Petition for Divorce. The parties are only required to go to court once, and a Judgment for Divorce will issue on that date.

Please contact Attorney Gomes if you are interested in Divorce Mediation and/or filing for an uncontested divorce in Massachusetts.

Will the Court be Involved if We Use Divorce Mediation?

The simple answer to this question is Yes. The court will be involved if you use Divorce Mediation to resolve your divorce in Massachusetts. However, the court involvement will be very limited. One of the main differences between resolving your divorce with a mediator as opposed to a contested divorce in the Probate and Family Court is that you have the opportunity to come to an agreement with your spouse without the involvement of the court. When a divorcing couple decides to dissolve their marriage through a contested divorce there can be many court appearances by the parties. However, after a completed Divorce Mediation the parties will only have to go to court once, and their divorce will be finalized on that date.

The Timing of Divorce Mediation

A divorcing couple can engage in Divorce Mediation in Massachusetts at any time during their divorce. The parties may agree to meet with a mediator prior to even consulting with an attorney. It may be helpful for a divorcing couple to sit down with a mediator and discuss the issues that may come up during the divorce process. If the parties agree to meet with a mediator before meeting with an attorney, they may be able to provide their attorney with important information that they learn during the mediation.

The parties may also agree to utilize Divorce Mediation after consulting with their attorneys. Some parties feel it is important to speak with an attorney so that they can learn about their rights before attending a mediation session.

The parties may also choose to participate in the mediation process after they have filed for divorce. Once a Complaint for Divorce is filed, and the parties make their first court appearance, they may realize that they would rather resolve their divorce together instead of having a judge make decisions for them.

Finally, the parties may choose to seek the services of a mediator after their divorce has been finalized in order to resolve post divorce issues. Many issues arise after a divorce has been filed, especially when young children are involved. Rather than returning to court and having a judge decide their case, the parties may agree to resolve their issues in mediation.

Feel free to contact Attorney Gomes if you have any questions about the timing of Divorce Mediation.

Divorce Mediation Myth #1

There are many myths associated with Divorce Mediation. The first myth is that divorcing couples shouldn't consider Divorce Mediation unless they are in agreement about most issues concerning their divorce. This is certainly not the case. A divorcing couple can use Divorce Mediation even if they have not been able to agree on any of the issues of their divorce.  The mediator will work with the parties to resolve any of the issues that the parties wish to discuss during mediation.

Even after mediation, the parties may not be able to resolve all of the issues concerning their divorce. The most important information that a divorcing couple should know about Divorce Mediation is that they may consider using Divorce Mediation at any stage during the divorce process.

Please contact Attorney Gomes at tgomeslaw@yahoo.com if you would like to learn more about Divorce Mediation.

What is Divorce Mediation?

Divorce Mediation is a process by which married individuals can come together to resolve the issues regarding their divorce. The parties involved may choose to be represented by an attorney, however, during the mediation process itself, attorneys are generally not present.  The Mediator will meet with the parties together to discuss their issues, and may meet with each party individually depending on the circumstances of the case.

At a Divorce Mediation, the parties may choose to attempt to resolve individual issues or all of the issues surrounding their divorce. Some of the common areas that are addressed in Divorce Mediation are child support, child custody, parenting schedules, alimony, division of marital property, health insurance, and other issues involving the parties' children.

Divorce Mediation is a voluntary, confidential process. A dedicated Divorce Mediator will meet with the parties once, or several times, depending on the complexity of the case. The parties will be allowed to speak about their feelings and concerns regarding the divorce process and the issues that they are unable to resolve. The Mediator will act as a neutral person who will attempt to help the parties resolve their issues.

At the end of the Divorce Mediation, the parties may decide to sign a memorandum or a separation agreement outlining the issues that they have resolved.  A separation agreement is required by the court in order for the divorce to be finalized. The parties may take their signed memo or agreement to their respective attorneys for review.

Please contact Attorney Theresa Gomes if you are interested in learning more about Divorce Mediation in Massachusetts.

Why Divorce Mediation is a Good Alternative to a Contested Divorce in Massachusetts

The end of a marriage is certainly a stressful time for all parties involved. Some divorces can cost thousands upon thousands of dollars in legal fees. In a traditional divorce, both parties usually pay for their own attorneys. In Massachusetts, the cost for a good attorney can be somewhere in the area of $250.00-$400.00. per hour. Given those numbers, it is easy to see how a contested divorce could become very expensive.

Divorce Mediation in Massachusetts can provide individuals with a more cost effective, amicable way to end their marriage. Divorce Mediation is a process by which two individuals who wish to be divorced, discuss all of the issues involved and attempt to come to an agreement that is acceptable to both parties. The process is monitored by a neutral person, the Mediator, as the parties try to work out their issues and concerns. The Mediator does not represent either party, and does not act as an attorney. The Mediator will assist the parties in writing an agreement if they are able to come to one.

Divorce Mediation can be considerably less expensive than a contested divorce. Both parties share in the cost of the Mediator. In addition, Divorce Mediation can be less time consuming than a contested divorce in Massachusetts. If the parties are able to work out their problems in Mediation, an agreement may be written in a short amount of time.

Attorney Theresa Gomes is a Certified Mediator in Massachusetts and would be happy to assist you in mediating your divorce.

Law Office of Theresa L. Gomes has moved to a new location

The law office of Theresa L. Gomes has moved to a new location as of March 1, 2013. Attorney Gomes can now be reached at her new address: 891 Centre St. Suite 200, Boston, MA 02130. Her new telephone number is (617) 524-6600.