Child Support ALERT!

CHILD SUPPORT ALERT

On August 1, 2013, new child support guidelines went into place in Massachusetts.  The new guidelines make both large and small changes to the child support landscape. 


(Photo credit: oregonchildsupport.gov)

What does this mean to you?  If you are paying or receiving child support, the amount you pay or receive might be able to be changed depending on your circumstances. For example, a Payor making $1,200 per week and Recipient making $400 per week would normally have a $352 child support payment per week. (This assumes no other income or deductions and is for example only).  Under the new guidelines, the child support figure drops to $253 per week.

Some notable changes are the following:

1.) Means-tested government income is NOT includes as income for calculating child support.  Means-tested income includes Social Security Income, SNAP benefits, and Transitional Aid to Families with Dependent Children.

2.) All, some, or none of income from second jobs or overtime may be considered by the court, regardless of whether this is new income or was earned prior to dissolution of the relationship/marriage.

3.) If a child is with the custodial parent for more than two-thirds of the time, a judge may allow even more child support than what the Guidelines suggest.

Here is a link to the new Guidelines http://www.mass.gov/courts/childsupport/2013-child-support-guidelines.pdf  It is only twelve pages, so it is worth a read if you are paying or receiving child support. 

Here is a link to even more information about this subject. http://www.mass.gov/courts/childsupport/index.html

If you have any questions regarding the new Child Support Guidelines and how they may affect alimony payments, do not hesitate to contact an attorney.

-- Geoffrey R. Farrington, Esq.

(413) 283-6455
http://www.lawyerspalmerma.com/

How Investors will be Making Money off Massachusetts Medical Marijuana

(Photo credit: thinkprogess.org)

On May 8, 2013, Massachusetts state public health officials approved a set of regulations for the use and distribution of medical marijuana in the state.  In November 2012, Massachusetts voters approved a ballot initiative to allow the medical use of marijuana for "debilitating medical conditions", such as HIV, AIDS, Parkinson's disease, and multiple sclerosis.  Massachusetts is the 19th state (including the District of Columbia) to allow the distribution and use of medical marijuana.   

Up to 35 dispensaries will be open throughout the state.  Communities throughout the state are scrambling to modify zoning regulations to accommodate or even limit where a dispensary may be placed.  For example, Here is a link to what Pittsfield and Stockbridge are currently doing with their zoning laws.

Potential investors are wondering how to cash in on the inevitable market that will soon open up in Massachusetts surrounding medical marijuana.  The medical marijuana market in Massachusetts will no doubt be a multi-million dollar industry. Patients may receive up to a 60-day supply of marijuana, which the regulations defines as 10 ounces--a little over 1/2 a pound.  However, some patients may be allowed more with permission from their doctors.

Investors wondering how to become licensed to sell medical marijuana should be intimately familiar with the regulations.  The following is a break down of some of the regulations, not all.  This blog post does not constitute legal advice.  You are advised to speak with an attorney before acting on any information contained in this blog.

Registered Marijuana Dispensary

A registered marijuana dispensary (hereinafter "RMD") is a non-profit entity that acquires, cultivates, possesses, or sells medical marijuana. In order to sell medical marijuana in Massachusetts, an entity must be a RMD.

How to apply:

The following is a list of some of the requirements an RMD, all executives, directors, employees and volunteers must have:

• Be over 21 years of age;
• Have not been convicted of a felony drug offense in Massachusetts, or similar violation in another state, or U.S. territory;
• Submit a CORI Report from the past 30-days prior to application;
• All dispensary agents must have valid registration cards that were issued by the state;
• The entity must show proof that is has at least $500,000 at its disposal in bank accounts or lines of credit;
• a non-refundable application fee; and
• Various other requirements of the regulations.

After submission of the above information, state officials will then determine if your application can move into Phase 2 of the process.  Phase 2 requires much more detail than Phase 1 and a company would be wise to have an attorney assist with Phase 2.  Although, a company or potential company, may also want to consult with an attorney before any steps are taken before applying to become a RMD.

State officials will "score" the application based up certain criteria. Obviously, a RMD with a higher "score" has a better chance at obtaining a license.

(Photo credit: colonialgeneral.com)

General requirements of a RMD:

Once a company is qualified to be a RMD, certain additional requirements must be met. The following is a list of some of those requirements:

• The non-profit company must be a corporation in good standing with the Massachusetts Secretary of State;
• Vaporizers must be available for sale to qualifying patients;
• a RMD cannot have more than two locations, but only one location can be dispense marijuana and other limitations must also be met with regard to the two locations;
• RMD must have a program for reduced costs or fees for for patients for financial hardships;
• Obtain a "certificate of registration"; and
• various other requirements such as security systems and storage facilities.

How Can One Make Profit if a RMD is a Non-Profit Company?

Since a RMD must be established as a non-profit corporation, a company and its directors or employees, may not expect to have significant financial compensation from running such a business.  However, one may be surprised that directors, executives, and some employees of certain non-profit companies have been known to receive substantial compensation for their work due to the demands and/or expertise of the work. 

Additionally, opportunities may exist in leasing land to an RMD.  There is a provision in the regulations that allows for an RMD to lease land, rather than having to purchase land. Various types of leases should be examined in order to fully maximize the profit potential of such a lease.

If you or your company want to explore the possibility of applying to become an RMD to dispense, grow, and sell medical marijuana in Massachusetts, or if you are looking to lease land to a RMD, an attorney may be able to help further explain and assist in the intensive application and regulation process

Here is a breakdown of some the regulations put out by the Massachusetts Dept. of Public Health.

By: Attorney Geoffrey Farrington

www.Bohnet-Romani.com
Twitter: @FarringtonLAW

Am I Entitled to my Ex-spouse's Inheritance?

(Credit:longislandbankruptcyblog.com)

In Massachusetts, a divorce court attempts to distribute the marital estate in a fair manner.  What if your soon-to-be ex-spouse's parents are very wealthy and plan on giving most of it to your spouse when they pass away?  Can you expect a piece of the inheritance during the divorce process?  The short answer is. . . . no.  However, there is a way to let the judge know your spouse's future opportunity to acquire assets will be significantly greater than yours due to the expected inheritance.  A document called a Vaughan affidavit can greatly assist a party whose ex-spouse is in-line to inherit the family fortune.

Hypothetical Situation

Let's assume that Husband and Wife have been married for 15 years, they do not have kids, and they each hold middle income jobs.  Wife files for a divorce in Massachusetts.  Wife's parents, who are retired, were the owners of several successful chain restaurants and have an estimated net worth of $2.3 million.  The Wife's parents have dome some estate planning and will leave all of their assets to Wife when they pass away.

Husband wants a portion of Wife's expected inheritance as part of the divorce settlement.  He is  

Vaughan Affidavit

 Massachusetts law does not allow for Husband to take part of the expected inheritance during a divorce proceeding.  Even though Wife's parents have a net worth estimated at $2.3 million, it is not guaranteed that the Wife will inherit a single penny.  There are numerous reasons that could reduce or eliminate the Wife's parents' assets.  For example, the stock market might crash, the vacation home might go up in flames and not be covered by insurance, there may be significant future medical bills, there may be significant back taxes, the parents might change their minds and not leave anything to Wife etc.  Therefore, divorce courts do not divide a spouse's possible inheritance during a divorce.

However, Mass. General Laws ch. 208, § 34 requires a court, when determining alimony and an equitable division of the martial estate, to consider certain factors, including a party's "opportunity for future acquisition of capital assets and income."  Thus, if a party is going to inherit a significant amount of money or assets, that party will have a good opportunity to acquire future assets, a factor the judge should know about.

To find out how good of an opportunity a spouse will have at acquiring future assets, a party, through counsel, should request a Vaughan affidavit from the soon-to-be ex-spouse's parents.  The Vaughan affidavit was named after a Massachusetts divorce case decided in 1991.  The Vaughan affidavit is unique to Massachusetts divorce law.  It provides a way for a spouse's parents to give a general description of their assets and potential inheritance to spouse.  The affidavit strikes a balance between the spouse's parent's privacy interests and a divorcing party's need to discovery important information that might affect a divorce settlement.  If a spouse's parents give a sufficient Vaughan affidavit, it eliminates the need for invasive prodding into their financial information.

Closing Thoughts

It is important to note that the Vaughan affidavit technique applies only in Massachusetts.  If the spouse's parents reside outside of Massachusetts, the Vaughan affidavit may not have any legal significance. Other methods, such as requesting estate planning documents or sending out subpoenas for such documents, may be appropriate.

If the spouse's parent refuse to give the Vaughan affidavit, there are techniques that counsel may use to discovery the information.

Legal counsel should ask for a Vaughan affidavit if the circumstances suggest that a spouse will be receiving significant inheritance.  Real world warning: if one requests a Vaughan affidavit from a spouse's parents, one must warn their own parents to expect to receive a Vaughan affidavit request themselves.  One might prepare their parents for this possibility--an awkward conversation for some. Many do not talk with their parents about estate planning until they are forced to do so by a Vaughan affidavit request.

Although the Vaughan affidavit may appear to be a small portion of a divorce case, for some, it can have a significant life-long impact.

By: Geoffrey R. Farrington, Esq.

www.Bohnet-Romani.com
Twitter: @FarringtonLAW

Mass. High Court Shows Signs of Marijuana Leniency

On April 5, 2013, the Massachusetts Supreme Judicial Court, the highest court in the Commonwealth, came down with four major cases involving the use, possession, distribution, and search of marijuana in vehicles.  Three out of the four cases were decided in favor of the defendants and against the government.

Remember: possession of one ounce or less of marijuana is not a criminal offense in Massachusetts. It is, however, a civil infraction. Mass. General Laws chapter 94C, section 32L.

Keep reading for a short break down of the cases in plain English.

(Credit: drugpolicy.org)

Growing Marijuana Without a Permit is Still NOT Legal in MA

The first case up was Commonwealth v. Palmer. Here, Kenneth Palmer was charged with cultivation of marijuana after police legally entered his home and found him growing marijuana plants, even though the amount recovered in his home was less than one ounce.  The Court considered what effect, if any, the decriminalization of one ounce or less of marijuana had on the offense of cultivation, where the amount cultivated was less than one ounce.

The Court reasoned that since the decriminalization law specifically referenced simple possession of marijuana only, and no other provisions, such as cultivation, then the law was not intended to decriminalize any offense other than simple possession of one ounce or less of marijuana.  So, for now, it looks like courts will not be throwing out cases just because the amount of marijuana grown is less than one ounce. 

Smoking Marijuana in a Group is NOT "Distribution"

The next case was Commonwealth v. Jackson. The Defendant, Kiiyan Jackson, was attending Boston's annual "Hempfest," a festival to promote the legalization of marijuana.  As Jackson was sitting on a park bench smoking a marijuana cigarette with his two friends, members of the Boston Police seized the cigarette and intended to issue the men civil citations for possession of one ounce or less of marijuana. However, as Jackson stood up the police saw a plastic bag coming out of his pocket. The officer pulled the bag from Jackson's pocket and found that it contained what appeared to be marijuana. Officers then searched Jackson's backpack, which smelled like marijuana, and found several small plastic bags and less than an ounce of marijuana.

The Court considered two questions: 1) whether the social sharing of a marijuana cigarette constituted "distribution" and 2) whether such sharing gave officers reason the search the backpack.  The Court explained "that the social sharing of marijuana is akin to simple possession, and does not constitute the facilitation of a drug transfer from seller to buyer that remains the hallmark of drug distribution." The Court concluded that socially sharing a marijuana cigarette does not mean a person can be charged with "distribution."

Additionally, the Court concluded that the officer's observation of Jackson with the marijuana cigarette did not give them probable cause to search his backpack.

After reading this case, I consider the real world application: officers probably cannot search a person if all they have done is smoke a marijuana cigarette in the officer's presence. This obviously is not legal advice, but it appears to be what the Court is getting at in their decision.

Search of Car for More Marijuana is NOT Permissible

Commonwealth v. Daniel was the next case decided by the Court.  The Defendant, Clint Daniel, was the passenger in a vehicle that was pulled over for a non-functioning headlight and making a turn without using a directional signal.  When the Boston Police Officer approached the vehicle, he smelled burnt marijuana and witnessed Daniel with his head and shoulders rocking back and forth.  After the officer asked the occupants in the car whether they had marijuana, the driver of the car produced two small bags of marijuana.  The officer orders the occupants out of the vehicle.  The officer then searched the glove box of the vehicle to discover an illegal firearm.

The question the Court considered was whether the search of the vehicle was permissible. The Court noted, once again, that one ounce or less of marijuana was not a criminal offense.  The amount of marijuana offered by the driver was less than an ounce.  Therefore, the Court concluded that the officer did not have probable cause to believe that more marijuana (or other contraband) was in the vehicle and, thus, the search of the vehicle was impermissible.  As such, the discovery of the firearm was improper and that evidence was thrown out.

The main point to take from this case is just because a person shows an officer less than an ounce of marijuana, doesn't give that officer probable cause to search a vehicle for more contraband.  Of course, the introduction of other facts may give officers probable to search for more.

The final case decided by the Court, Commonwealth v. Pacheco, falls under the same category as the Daniel case discussed above.  The Defendant, Antonio Pacheo, was a passenger in a car that was illegally at the Heritage State Park in Lynn after hours.  The State Trooper noticed that the car was parked in a handicap spot without proper registration.  Also, the Trooper noticed the windows of the vehicle were completely fogged up.

Upon the Trooper approaching the car on foot, he smelled a strong odor of freshly burnt marijuana.  The five occupants in the car admitted to smoking marijuana together in the car.  One of the occupants informed the Trooper that there was a small amount of marijuana still in the car on the floor. The occupants were ordered out of the car and were searched for weapons and contraband. Nothing was found on the occupants.  The Trooper did confirm the marijuana on the floor of the car in a clear plastic bag.

The Trooper then proceeded to search the trunk of the vehicle for evidence of more contraband.  In the trunk was a backpack containing a gun. Pacheo admitted that the marijuana and gun was his and that he did not have the proper license to have the gun.

The Court examined whether the Trooper had probable cause to support the search of the trunk for more contraband after observing signs of recent marijuana use and the presence of less than an ounce of marijuana.  As in the Daniel case, above, the Court concluded that the Trooper did not have probable cause to search the trunk and the evidence of the gun was thrown out.  Also, since the admission by Pacheco that he owned the gun and the marijuana were a result of the impermissible search of the trunk, those statements were also thrown out.

Final Thoughts

The four recent Massachusetts Court decisions above mostly indicate the Court is becoming more lenient with its marijuana cases in light of the decriminalization of an ounce or less.  In light of these new Court decisions, future and pending cases that involve the possession of marijuana and the search of a vehicle as a result of possession should be examined to determine if the rights of the defendant were violated.

Here is a link for a little more information about Massachusetts' marijuana laws.

By: Attorney Geoffrey R. Farrington

www.Bohnet-Romani.com
Twitter: @FarringtonLAW

"Please step out of the car, ma'am..."

"Please step out of the car, ma'am": words that nobody likes to hear from a police officer.  At this point of a traffic stop many legal questions have already been raised.  Was the basis of the stop constitutional? Should the officer have given the driver (or passengers) their Miranda rights? Was the order to exit the vehicle lawful?  This post will focus on when an exit order from a vehicle is lawful or unlawful.

Under what conditions may an officer ask the occupants of a vehicle to exit?  Under the Fourth Amendment to the U.S. Constitution, officers are given wide latitude to order occupants out of a car, even as a matter of course.  See Pennsylvania v. Mimms, 434 U.S. 106, 109-10 (1977); Maryland v. Wilson, 519 U.S. 408, 412 (1997).  The officer may search the interior of the vehicle for weapons once the occupants are outside of the vehicle.

However, Article 14 of the Massachusetts Declaration of Rights constrains the officer's ability to give an exit order much more than the Fourth Amendment.  The reason for the initial stop of vehicle dictates when an officer may give the exit order.  If the initial stop was simply for a traffic violation, officers in Massachusetts may not order occupants out of a vehicle unless there is reasonable apprehension of danger to the officer or others.  See Commonwealth v. Bostock, 450 Mass. 616, 620 (2008).  The standard is different if the vehicle was initially stopped because the officer suspected criminal activity or if reasonable suspicion of criminal activity arises after the initial stop.  In such circumstances the officer may give an exit order to investigate into the suspected criminal activity.  See Commonwealth v. Blake, 23 Mass. App. Ct. 456, 460 (1987).  However, the investigation can only go so far as is proportional to the suspected criminal activity. See Commonwealth v. Williams, 422 Mass. 111, 116 (1996).

For example, if initially pulled over for suspicion of driving under the influence of alcohol, officers may be violating the occupants constitutional rights if they search the vehicle for weapons.  This assumes no other facts arise to give officers the suspicion that there may be a weapon..  This example is very narrow and only used as an illustration. Any other facts added to it may give the officers reason to search for weapons.  Consulting a criminal defense attorney may be helpful in determining if your constitutional rights have been violated.

Of course a multitude of other issues arise during and after a traffic stop in addition to whether an exit order was lawful.  Other issues may include "threshold inquiries" (Terry v. Ohio, 392 U.S. 1 (1968)), pat frisks, searches of the vehicle, inevitable discovery of contraband or other items, etc. Every vehicle stop should be examined thoroughly to determine if the officers violated certain constitutional rights.

- Attorney Geoffrey Farrington
(413) 283-6455
www.Bohnet-Romani.com

Starting a Business in Massachusetts

If you are thinking of starting a business in Massachusetts there are a few simple steps you should take to protect yourself and your company.  First and foremost, decide on the proper business entity to start your business. Massachusetts has a few options which include, but are not limited to, the sole proprietorship, limited liability company, partnership, and full-blow corporation. Even if you think you have a "simple" business (you are the only employee and you work out of your house), choosing the proper business entity could protect you from liability.

Employees add another level of consideration when choosing a business form. Through the doctrine of respondeat superior, an employer is liable for the actions of their employees (with limited exceptions). Additionally, employers can even be held liable for actions of independent contractors in certain situations.

The type of business entity you select will have tax consequences.  Many times it is most advantageous to plan the form of your business around tax considerations. You can greatly reduce your tax burden by selecting the proper business form.

Other considerations when starting a business in Massachusetts are whether you are required to have any permits or licenses and how you can get a bank loan to get your business jump started.  Massachusetts has many different permits and licenses that certain businesses are required to hold.  Keeping your permits and licenses up-to-date should be a part of any business' long-term plan.  Additionally, many banks are willing to provide loans to start-ups if they present themselves correctly.  Part of your presentation to a bank or other investors should include a sound legal platform.

Here is a great link to resources that the Commonwealth has put together for start-ups in Massachusetts.

If you have any questions about starting a business in Massachusetts, do not hesitate to contact an attorney at Bohnet and Romani, P.A. www.Bohnet-Romani.com

Nothing in this blog constitutes legal or tax advice. Do not rely on any representations made in this blog before consulting a qualified attorney.

By: Attorney Geoffrey Farrington

VALOR Act Helps Massachusetts Veterans Who Are Accused of Crimes

Veterans of our nation's armed services may be eligible for a special program designed to help them through the court system should they find themselves accused of committing a crime.  The law is called "An Act Relative to Veterans' Access, Livelihood, Opportunity, and Resources," also known as the VALOR Act. The purpose of the Valor Act is to provide veterans, who have been honorably discharged from any branch of the United States Armed Forces, with an evaluation given by the United States Department of Veterans Affairs or the Massachusetts Department of Veterans Services, to see if they are eligible to go into a diversion program, instead of going into the traditional justice system.  The act actually provides for many more benefits to veterans than just the criminal diversion program.

The diversion program provides veterans with a chance rehabilitate and improve their mental health by being placed into a program that is specialized to their needs.  Each participant will has an individualized treatment plan, in which they must follow exactly, to stay in the program. The participants  regularly meet with their case manager to be evaluated on their progress. The participants must adhere to all of the conditions of the Veterans Court Diversion Program, to remain in the program. The Valor Act provides a second chance for veterans who have had no prior convictions or trouble with the law (with the exception of traffic violations), so that they will be able to better function in society. Upon completion of this program or community service, the criminal case will be dismissed and the veterans’ record will remain clean.

This is a great program for those veterans who qualify, although not all veterans are eligible for the program and each case must be examined before the diversion program can be made an option.  The main theory behind the program is that veterans, who have become emotionally/mentally scarred as a result of service in the military, should be treated differently when they are accused of a crime.

There are time limits for trying to get into the diversion program after arrest.  Currently, there is only one special Veteran's Treatment Court in Norfolk County, but more courts are planned to open throughout Massachusetts.  However, a Veteran's Treatment Court in a specific county is not necessary to take advantage of the program.

Please feel free to contact one of the attorneys at Bohnet & Romani, P.A. if you should have any questions about this special program for veterans. (413) 283-6455 www.Bohnet-Romani.com

This article was prepared with the assistance of Amanda Scungio.