Issue May/June 2016

May 2016

Advantages of amending the Massachusetts nonprofit corporation law

The Massachusetts statute governing nonprofit corporations, M.G.L. c. 180, was originally adopted in 1971. For the past 45 years, this statute has governed many large institutions and smaller nonprofit organizations in Massachusetts. Efforts are underway by a working group from the Boston Bar Association to propose changes to the Massachusetts nonprofit corporation law. It will be important to consider those changes, and their potential improvements on the organization and operation of nonprofit corporations in Massachusetts.

Trying to settle probate disputes: mediators share their insights and strategies

Family tensions make great, often amusing drama -- like Jarndyce v. Jarndyce, the Corleones, the Simpsons and the Bunker household at 704 Hauser St. We love the eccentricity, back-stabbing and lampooning of illusory notions of family harmony. One way or another, we can all relate. We all have families.

Who can afford to live in Boston or the 'burbs anymore?

On Jan. 26, 2012, Supreme Judicial Court Justice Ralph D. Gants led lawyers on a walk to Beacon Hill seeking additional funding for the Massachusetts Legal Assistance Corporation (MLAC). He delivered a resounding address citing reasons the legislature should approve additional funds for the MLAC. He began by noting that legal services ensure that the promise of "justice for all" is more than a promise. He ended by urging his colleagues to ask our elected representatives some variation of the questions asked centuries ago by Hillel: "What kind of commonwealth would we be if we did not protect the rights of those in need by providing them with adequate legal services? And if we do not protect the rights of those in need, who will? And if not now, when?"

Just cause eviction' proposal cause for serious concern

Small property owners continue to face an uphill battle in Massachusetts. On March 14, 2016, the Boston City Council held a public hearing on a proposal of tenant advocacy groups to amend the eviction laws and in essence, cap rents in the city of Boston. These groups, led by City Life/Vida Urbana, have been fighting for this new legislation (titled "Just Cause Eviction") as a result of gentrification and development. The March 14 hearing was attended by an overflow crowd of landlord and tenant groups, including a panel of three on each side of the dispute and hundreds of people interested in testifying.

Family feud, Pfannenstiehl-style

Divorce disputes involving a spouse's rights as a beneficiary of a third-party trust are often complex and bitterly contested. Typically, a beneficiary-spouse will argue that the settlor (parent) had no intention of subjecting the trust assets to a property division for the benefit of a former son-in-law or daughter-in-law, and that the terms of the trust expressly prohibit the court from invading the trust for this purpose. The non-beneficiary-spouse will likely argue that he or she made a substantial contribution to the marriage, and that the family relied on the trust funds to live, such that a division of some portion of the trust principal is both warranted and within the court's authority to divide pursuant to M.G.L. c. 208, § 34. What is a Probate Court to do?

Custody, codified

The proponents of Senate No. 834, "An Act Relative to Child Centered Family Law," are out to prove Tolstoy wrong. If SB.834 passes in its current form, the situation-specific approach to child custody will in part give way to checklists, new presumptions and shifted burdens of proof. Unhappy families -- our clientele -- will be judged by new mandatory yardsticks. Think that the "Section 34 factors" could never happen to child custody? Think again.

Collaborative law: practicing family law with heart

In May of 2014, I attended the Massachusetts Collaborative Law Council's day long Advanced Training Forum. The attendees included lawyers, coach/facilitators, mental health practitioners, financial neutrals and other professionals who help divorcing couples. There were the usual discussions about finding better ways to help our clients divorce, finding more clients, and finding other professionals willing to practice collaboratively. And there was also singing!

The preferences and voices of children in Massachusetts

In divorce and custody proceedings, courts are often saddled with the heavy burden of determining children's proper custodial placement. In adjudicating this issue, courts must determine how the child's preference is obtained and relied upon. This is a process fraught with complexity, as courts must balance protecting the child with procedural due process. In light of these complexities, courts across the country have developed two primary and interrelated means of "hearing" a child's "voice": First, by allowing for judicial interviews of children, and second, through representation for the child, whether through an attorney, a guardian ad litem (GAL), or combination thereof.