Volume 2, Issue 1: SPRING 2009

In This Issue:

K&G’s team of friendly, accessible and capable professionals is here to help individuals and businesses with the issues they face today: managing privately-held businesses, estate planning, trust administration, adoptions, divorces, real estate transactions, and business and civil litigation. We offer high-quality, efficient “service, service, service” at a reasonable cost. Responsiveness to our clients is our priority.

Dad Law
I Cannot Believe They're Adults!

With my oldest daughter now 18 and preparing to go off to college this fall, I suddenly realized that, difficult though it may be for me to comprehend, legally she is an adult. In the Commonwealth of Massachusetts, once a person attains the age of 18, he or she is considered an adult. M.G.L. ch. 231, § 85P.

Before sending your own child off to college, keep in mind that he or she should have certain basic documents in place before they are needed. Without these basic documents, if, as, and, when there is a problem, a family must go to court in order to legally represent the adult student. The necessary documents include:

As important as it is for your adult student to have these documents in place, of course all adults should have these documents in place. Unfortunately, bad things sometimes happen to good people. Plan now to avoid regrets later!

Steven S. Konowitz ext.236

Adoption Law
New Developments with Intercountry Adoptions

Approximately 20,000 intercountry adoptions are completed every year in the United States. Intercountry adoptions are governed by both the laws of the child’s home country and the laws of the United States, including federal law and the laws of the adoptive family’s state of residence. Recently the United States joined The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention) which is an international agreement to safeguard intercountry adoptions.

As of April 2008, the Hague Convention will monitor adoptions between the United States and the other seventy-five Convention member countries, including many of the countries from which U.S. citizens adopt most frequently. Each member country has established a central authority to maintain ethical practices in the adoption process. The Hague Convention is intended to protect children, birth parents and adoptive parents from corrupt practices that have become common in some countries. Specifically, the primary principles of the Hague Convention include ensuring that each adoption is in the best interest of the child and preventing the abduction, sale or traffic of children related to intercountry adoptions.

The Hague Convention adoption process involves several major steps. At the outset, an adoptive family must choose an accredited adoption service provider. Under the Hague Convention adoption agencies must be accredited or approved on a national level and adhere to comprehensive federal standards in order to provide adoption services in Convention countries. These standards are designed to ensure that the adoption agencies operate using sound professional and ethical adoption practices. Through immigrant visa petition and visa application processes the adoptive family must be deemed eligible to adopt, and be referred for a child, then the identified child must be found eligible to immigrate to the United States. Finally the adoptive family adopts the child in the child’s country of origin and the adoptive family obtains an immigrant visa for the child. The goal of the multi-step process is to protect children and families by identifying potential problems that could prohibit the child from entering the United States before the child is adopted. This helps ensure that every child who is adopted overseas by a U.S. citizen or brought to the United States for the purpose of adoption by U.S. citizen adoptive parents is able to enter and reside permanently in the United States. If you have any questions about intercountry adoptions, please contact Arlene Kasarjian or Karen Greenberg, the current President of the American Academy of Adoption Attorneys, which was actively involved in the drafting of the Hague Convention.

Arlene L. Kasarjian ext.228

Estates & Trusts
When and How to Change Your Will

Many people assume it is easy to change their Will; just take out a pen and make the changes you want then file it away for safe keeping. But in reality, a Will may be changed or revoked only by following specific procedures. These are generally best done with the assistance of an attorney.

Massachusetts General Laws Chapter 191, § 8, provides that a Will may be revoked in three ways: (1) by a new document executed in the manner required for a Will; (2) by a change of circumstance giving rise to a revocation implied by law; or (3) by “burning, tearing, canceling, or obliterating it with the intention of revoking it, by the testator himself or by a person in his presence and by his direction.”

Specific legal requirements also govern the modification of a Will. Changes to a Will—words, figures and provisions that are added after the Will was originally signed, or provisions that are crossed through or blotted out—are not automatically given effect. Instead, the validity of the changes must be determined by a judge; a process that may prove both time-consuming and costly.

Initially, a court must determine whether the changes to the Will were actually made by the deceased, and their intent at the time the marks were made. For example, a question may arise as to whether the deceased intended to revoke the Will in its entirety or only in part. Likewise a court may question whether marks and writings on the document were intended to modify the Will or merely indicating changes to be made in a contemplated but never completed new Will. Alternatively, the marks might be construed as clarifying, but not altering, a provision made ambiguous by changes elsewhere in the Will. Where the circumstances under which changes were made are unknown, anyone seeking to enforce the changes must prove not only that the deceased was of sound mind at the time the markings were made, but also that the markings reflect their intent to change the Will.

It is advisable to review your Will every couple of years, or any time there is a change in circumstance in your life, such as marriage, the birth of a child or grandchild, or the purchase of new property. If you feel that changes need to be made, consult an attorney, so that your wishes are properly and effectively reflected in the document. Please feel free to contact me if you have questions about drafting or modifying a Will.

Mia Rosenblatt Tinkjian ext.226

Family Law
The NEW Massachusetts Child Support Guidelines

In October 2006, the Child Support Guidelines Task Force began a comprehensive review of the Massachusetts Child Support Guidelines. The Guidelines are used by Judges of the Probate and Family Court and attorneys to determine temporary and final orders for child support and/or to determine whether a modification in support is warranted. Changes to the Guidelines recommended by the task force have now been enacted, and took effect on January 1, 2009.

There are several notable changes to the Guidelines that underscore the Courts’ recognition of the evolutionary changes in families. Among these changes:

  1. The Guidelines now refer to parents as “payor” and recipient” rather than as “obligor” and “obligee;” these Terms help erase any derogatory connotations;
  2. The Guidelines no longer refer to terms such as custody or visitation that do not accurately reflect the roles of parents living in separate households. Instead, the term “parenting time” is now used, and more accurately reflects each parent’s role in their children’s upbringing;
  3. In determining the appropriate child support order, both parents are now allowed to deduct from their respective gross incomes the full amount of health insurance coverage, whether the plan covers an individual or family. Moreover, the Courts do not have the authority to order the recipient to provide health insurance without an agreement of the parties;
  4. The Guidelines have a new category for dental/vision insurance. Again, both parents may deduct the costs from their gross income in determining the child support order. However, courts have the discretion to allow or deny the deduction where the additional cost for coverage of a person not included in the Court’s order unfairly reduces the child support amount;
  5. The newly entitled Routine Uninsured Medical and Dental Expenses category makes the recipient responsible for the first $250 of such expenses annually. Once that threshold is reached, the courts will allocate the additional expenses between the parties, on a case-by-case basis if necessary. This approach eliminates the need to seek a court order based upon the unreasonableness of one of the parties, if no agreement can be reached;
  6. The provision discarding the “custodial” parent’s first $20,000 of income before calculating the child support is eliminated. This change recognizes that many parents with children under the age of six work and utilize daycare;
  7. The Guidelines adopt a new approach to modification of existing orders, which provides for a three year review without the need to demonstrate a material change in circumstance. A material change in circumstance is still considered, but is no longer the sole factor to determine whether modification is warranted;
  8. Certain cases may still warrant deviations from the Guidelines, and the courts must still make specific findings. However, the Guidelines now suggest circumstances which may support a deviation;
  9. The Guidelines now apply to shared parenting plans, where the children reside with each parent just about the same amount of time. In those cases, the Guidelines are calculated twice: once with one parent as the recipient and then with the other parent the recipient. The parent with the lesser amount of income is paid the difference between the two guideline calculations by the other parent.

This is only a sample of the many changes in the Guidelines. The full report and Guidelines may be found at http://www.mass.gov/courts/childsupport/guidelines.pdf. If you have questions about these changes, or whether they may affect you or someone you know, feel free to contact me.

Karen K. Greenberg ext.235

Litigation
Understanding Chapter 93A’s “Fair Dealing”

While its protection of consumers is well known to most Massachusetts businesses, Massachusetts General Laws Chapter 93A also prohibits businesses from engaging in unfair and deceptive business practices in their dealings with other businesses. The potential reach of Chapter 93A in this area is broad since, to constitute a violation of the statute, the conduct in question need not be illegal, but only “within at least the penumbra of some… established concept of unfairness.” PMP Assocs. v. Globe Newspaper Co. “The statute works from its own bottom. Actionable unfairness does not require an established common-law wrong or breach of an equitable standard.” Renovator’s Supply, Inc. v. Sovereign Bank.

While the courts continue to flesh out the types of business-to-business conduct prohibited by the statute, one established category of prohibited activity is so-called “coercive or extortionate tactics” engaged in to obtain advantages or concessions from another business. The Massachusetts Appeals Court’s recent decision in the Renovator’s Supply case represents the latest example of the type of “coercive tactics” prohibited by Chapter 93A. In that case, the plaintiff had an existing line of credit with Sovereign Bank, which it had renewed annually for a number of years, often after the expiration of the preceding year’s agreement. During those periods, the bank routinely kept the credit line open for the plaintiff until a new agreement was signed.

In 2002, the bank began to have concerns about the terms of the credit line and began internal discussions on the need to modify the terms of the credit agreement to require additional collateral and a higher interest rate. However, it did not communicate these concerns to the plaintiff or tell the plaintiff of the proposed new terms, but told the plaintiff that it would write up a renewal agreement. The day after the expiration of the old agreement, the bank notified the plaintiff that its credit line would only be renewed if it agreed to pay a higher interest rate and provide additional collateral. The plaintiff refused the new terms and, as a result of the loss of its line of credit, was forced to scale back business activities, for which it suffered losses.

The court concluded that, based upon historical practice and the promises made by the bank concerning a new agreement, the bank was estopped from terminating the credit line without reasonable notice. Despite finding that the bank had no contractual obligation to give notice or to continue the line of credit after its expiration, however, the Court also found that the Bank’s conduct was an attempt to exploit the timing of its notice to force additional terms on the plaintiff. The Court concluded that the use of such leverage represented coercive conduct by the Bank that violated Chapter 93A. It affirmed a judgment doubling the plaintiff’s actual damages and awarding attorney’s fees and costs.

Brad A. Compston ext.225

Civil Rights
Don’t Be Penny-wise and Pound Foolish

It is no secret that, in today’s economy, businesses of all sizes, and in all industries, are experiencing layoffs and cutting costs, particularly their discretionary expenses. The same is true for landlords, who are faced with more than the usual number of evictions.

In taking these necessary actions, however, both employers and landlords should be careful not to expose themselves to potential liability, particularly in the area of discrimination law. Discrimination cases can yield very large awards, and are more prevalent during difficult times such as these.

While no strategy can prevent all lawsuits, sound planning is vital to avoiding and winning discrimination cases. While it may be tempting to rely on boilerplate anti-discrimination policies and procedures found on the Internet or created by in-house counsel at corporate headquarters in Nevada, Massachusetts has some of the strongest anti-discrimination and sexual harassment laws in the country. In fact, the courts have strengthened the rights of employees and tenants in several recent cases.

For example, employers with fewer than six employees, who are exempt from the provisions of M.G.L. c. 151B (the Massachusetts anti-discrimination statute), nonetheless can now be sued for discrimination under the Massachusetts Equal Rights Act under a recent court case involving pregnancy-based discrimination. In another recent ruling, the court held that a landlord’s economic interest is not a legitimate, non-discriminatory reason to refuse to rent to a prospective tenant who is the holder of a housing subsidy, even if the subsidy requirements create a greater economic burden on the landlord. Subsidy holders are considered a protected class under M.G.L. c. 151B.

Even if your business has adopted policies and procedures in accordance with Massachusetts law, have they been updated recently to reflect these recent rulings? Perhaps more important, have your employees been sufficiently trained to understand and comply with these policies? In the event your business is sued for discrimination, being able to distance yourself from an employee’s actions by showing they are not in compliance with your company’s policies and procedures will be helpful.

If you need assistance understanding the requirements of Massachusetts anti-discrimination laws and how they impact your business practices, please feel free to contact me.

Rosalind E. W. Kabhrel ext.234

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