Questions & Answers

Additional Information:

My husband and his friend got into a bar brawl in Lunenberg and were arrested for assault and battery. The case is going to trial.   I saw the altercation but I don’t know if my husband is guilty or not.  If I get subpoenaed to testify am I going to have to testify or can I assert some kind of marital privilege?  Also, can my husband and his friend both decide to drop the charges so we can get on with our lives?

ATTORNEY ANSWER:

I am assuming your husband got into a fight with his friend at the bar and they were each charged with assault and battery against each other.  You do have a marital privilege, which if asserted, would allow you to legally refuse to testify against your husband even if you receive a summons to appear in Court.  You would still have to appear in Court, but you would assert your marital privilege once called to the stand to testify and the Court should recognize it as a valid privilege. [Read more...]

Additional Information:

I plead no contest to an assault charge and was placed on probation by the judge. Then last week I was involved in a fight outside a Fitchburg bar.  It wasn’t my fault at all but I was charged with another assault case. What’s going to happen now?

ATTORNEY ANSWER:

The probation department will summons you to Court simply due to your new charge of assault.  Two hearings will be scheduled.  Generally these hearings are scheduled very quickly and will go forward well before your new charge can be resolved.  Therefore, you will need to fight the new assault case first at the violation of probation stage.   At the first hearing the probation department will serve you with a notice of violation of probation, which will state that you are alleged to have violated your probation due to you being charged with a new offense of assault.  The probation department could ask that you be detained pending the second or final hearing.  They would have to show probable cause that a new offense was committed and a combination of other factors such as, you are a risk of not appearing at the final hearing, you are a danger, you are not a viable candidate for probation, or you are likely to receive committed time at the final hearing etc.  Or the probation department could just agree to you being released and schedule a final hearing date. You would be well served by hiring an experienced criminal defense attorney to protect all of your rights.

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Additional  Information:

On the weekends, I usually work on my yard but never start up the lawn mower or leaf blower until after 10 AM.  Last Saturday my neighbor charged out of his house after I started the lawn mower and started screaming at me (on my land) about how I always wake him up and threatened to break the lawn mower over my head.  I asked him to get off my property but he didn’t.  My wife saw this exchange and called the police. When they arrived, they talked to him but as far as I know didn’t really do anything.  Now I’m worried that this guy will harm me or my wife or do something to our property because he is clearly unstable.  So isn’t that an assault and why did the cops do nothing?  Besides this crazy neighbor, we really like our Leominster home and neighborhood.  What can we do?

ATTORNEY ANSWER:

10AM is not an unreasonable time to begin yard work or using power machines in your yard.  I cannot answer why the police chose not to take ay action.  I think it is a close call as to whether or not your neighbor’s conduct constituted an assault.  Section 13A of chapter 265 of our General Laws provides that “Whoever commits an assault . . . upon another shall be punished. . . .”

An assault may be committed in either of two ways.  It is either an attempted battery or an immediately threatened battery. A battery is a harmful or an unpermitted touching of another person. So an assault can be either an attempt to use some degree of physical force on another person — for example, by throwing a punch at someone — or it can be a demonstration of an apparent intent to use immediate force on another person — for example, by coming at someone with fists flying. The defendant may be  convicted of assault if the Commonwealth proves either form of assault.

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Additional Information:

What is the best way to handle the financial aspects of a divorce? I have been separated (not legally) from my husband for over a year and half. We are on good terms with one another and he lives nearby in an apartment in  Fitchburg which helps with the logistics of sharing custody and other parenting responsibilities for our 2 children.  He currently pays for daycare for our son and I’d like to ask him to help with half of the children’s medical/dental expenses.  Can we write up an agreement or do we need a lawyer for this?

ATTORNEY ANSWER:

In my opinion you are better off seeking the advice of an experienced divorce attorney regarding the financial aspects of your divorce and for drafting a clear, unequivocal, binding divorce agreement.  Depending on your respective incomes and assets the financial aspects of your divorce could be relatively simple or complex and sophisticated.  At a minimum the Court will need to make a determination of whether or not the child support guidelines apply to your case and if so what the proper amount of child support should be.  There may also be issues of alimony or spousal support, and dividing retirement plans or pensions by Qualified Domestic Relations Order or otherwise.  We offer relatively inexpensive initial consultations to discuss all of your rights and answer all of your questions.  We represent individuals in divorce and also couples in mediation.  At the very least you should consult with an attorney to discuss all of your rights and options.

You can certainly try and write up an agreement, but the Court may not approve it as written, or it may not address all of the issues it should, or it may simply not be worded clearly enough to rely on in the event one party decides not to follow the agreement.

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Additional  Information:

When I got married, I moved into my wife’s house in Leominster. We are now getting divorced and I’d like to keep the house. Do I have any rights to it?  How are assets divided?

ATTORNEY ANSWER:

Judges in MA are given wide discretion to divide all of the martial estate of the parties.  The applicable statute is M.G.L. C. 208 s. 34, which sets forth all of the factors the Court must consider in dividing marital estate.  It is difficult to say what your interest in the home may be without having more information.  It would be helpful to know how long your wife owned the home prior to the marriage and what the value of the home was on the date of the marriage versus today.  It would also be helpful to know the length of your marriage.  It will also depend on the amount of any other assets of the marriage.

If the Court were to determine that you had some interest in the home and your wife did not wish to live there, then you could either buy her interest out if you had the financial ability to do so or you could give her a greater share of some other asset if it were available.  If your wife does desire to continue to live there and she also has the financial ability to buy your interest out, then she may be given priority.  Again it would depend on several factors such as:  did your wife grow up in the home or have a significant attachment to it before your marriage, did one of you put a great amount of “sweat equity” into the home etc. You should discuss your rights with an experienced Leominster divorce attorney.

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Additional Information:

My wife and I have been separated for over a year. I am living with a new partner in the Fitchburg area and considering starting my own business. Will she have any claim on the monies when we go through the divorce?

ATTORNEY ANSWER:
Yes.  As long as you are still married your wife could seek an equitable share of any interest that may exist in the new business as well as seek spousal support and or child support from any income made from the business.  The fact that you are separated does not mean that your wife cannot still seek and potentially obtain a portion of the business or the income from it.  You are generally better off not creating a new asset or source of income during the pendency of a divorce.  My advice to you would be to consult with an attorney experienced in divorce law and begin divorce proceedings immediately.  The attorneys at Riddle & Associates are experienced in divorce matters and would be happy to consult with you. [Read more...]

Additional Information:

My wife and I got divorced in Worcester two years ago and I got sole custody of our 5 year-old son. My question is if I put it in my will that my brother will take care of my son if I die, will that happen or can my wife get custody if she wants?

ATTORNEY ANSWER:

Your wife could still get custody of your son even if you put it in your will.  Despite the fact that you got sole custody of your son, if you die, your wife will still have a right to petition the court for custody of your son.  Your brother could also file a petition for guardianship upon your death and try to establish that your ex wife is unfit as a parent and that it would be in the best interests of your son to live with your brother.  Unless your ex wife has serious issues in her life which would make her unfit and unable to parent your son, then she would likely be granted custody of him.  If nothing else, appointing your brother as guardian in your will will let the probate and family court judge know your wishes with respect to who will take care of your son after you are gone. [Read more...]

Additional Information:

I have been divorced for 9 years and as part of the separation agreement, I got the house in Leominster, MA. How do I get my ex-wife removed from my house deed? One of our lawyers was supposed to take care of this but it never happened. I have contacted my lawyer numerous times over the years to no avail. What do I need to do to get this taken care of?

ATTORNEY ANSWER:

A new deed needs to be drafted stating that you and your ex wife deed the property over to you individually.  If you are unable to get in contact with your former attorney then most attorneys are capable of drafting a new deed.  We charge a nominal fee of $100.00 to draft a new deed.  Once the deed is drafted your ex wife will need to sign it and then it will need to be recorded at the registry of deeds.  The registry charges a small fee to record the document.  The divorce agreement or judgment should discuss in detail how all of of this should be accomplished, but it may not.  If your ex wife refuses to sign the new deed then you should consult an attorney experienced in probate and family court matters.  Your ex-wife would likely be found in contempt for failure to sign the new deed and you may be entitled to attorneys fees and costs spent pursuing the contempt.  The attorneys at Riddle & Associates are experienced in probate and family court matters and would be happy to address any legal issues you may have. [Read more...]

Additional Information:

Our son, a freshman at a Fitchburg MA college, was recently arrested while carrying a small amount of cocaine. My wife and I are wondering if we should spend our money (which we can afford) to hire an attorney to defend him in this charge.  Is it going to make any difference or will he end up with the same type of plea bargain? Thanks.

ATTORNEY ANSWER:

At the very least you should consult with an experienced attorney to discuss your sons rights and available options.  We charge a very reasonable consultation fee to review your case, including analyzing the complaint, any police reports, witness statements and all available evidence in the case.  Upon review of all evidence we will advise you on your sons rights and all available remedies, including what you can expect to happen with the case.

Most of the time I am able to obtain the most beneficial type of results for my clients including Not Guilty verdicts after trial and Dismissal of charges.  If you decide to hire our firm after consultation generally you will get a better result due to our superior reputation, our knowledge, our skills and our experience.  A young person in college has a lot to lose in this day and age and should absolutely consult with and usually hire an experienced attorney to preserve and protect their reputation and criminal record. [Read more...]

Additional Information:

What is the new law in Massachusetts regarding marijuana?  Is it being enforced?

ATTORNEY ANSWER:

The new law in MA makes it a civil infraction, no longer punishable as a criminal offense, to possess an ounce or less of marijuana.  The police must issue a citation, similar to a speeding ticket, and it carries a $100 fine.  This citation is appealable in Court similar to a speeding ticket.  The statistics I have read show that most police departments are issuing very few citations for possession of less than one ounce of marijuana.

I have handled several cases where an individual has possessed less than an ounce of marijuana, but has packaging material, a scale, some cash and other circumstances which may or may not indicate distribution of marijuana, and the police will charge the person with possession with intent to distribute.  The police have a very difficult burden of proving this, so if you or someone you know is charged under these circumstances you should give my office a call to discuss your case. [Read more...]

Additional Information:

I have been divorced for 9 years and as part of the separation agreement, I got the house. How do I get my ex-wife removed from my house deed? One of our lawyers was supposed to take care of this but it never happened. I have contacted my lawyer numerous times over the years to no avail. What do I need to do to get this taken care of?

ATTORNEY ANSWER:

A new deed needs to be drafted tranferring your and your wife’s interest into your name alone.  Most attorneys are capable of drafting a Quitclaim Deed and it is relatively inexpensive.  The new deed will need to be signed by you and your ex-wife and both signatures will need to be Notarized.  This new deed will then need to be recorded at the appropriate registry of deeds for a fee of $125.00.  It is really that simple.

The only issue that could complicate the matter is if there is an outstanding Note on the property in you and your ex-wife’s names jointly or in her name individually.  If so, then generally your ex-wife would not deed over her interest in the property until you refinanced the Note or paid it off so that there is no longer a Note and Mortgage in her name.  Upon refinance or payment of the Note in full, then your ex-wife should immediately deed over her interest in the property to you. [Read more...]

Additional Information:

I work at a group home in Leominster. I gave a shower to one of the clients who was in a wheel chair. One week later she made a false sexual allegation.

Attorney Answer:

If you end up being charged criminally then absolutely you will need a criminal defense attorney. This is a very serious allegation with very serious consequences if you are tried and convicted. Do not provide a statement to anyone about this incident. If the police contact you or try to speak with you tell them you want a lawyer and do not speak to them. [Read more...]

Additional Information:

This incident occurred nine months ago. The individual in question entered the shop in which my wife and I worked, twice – refused to leave, then stood in the doorway barring her from closing the door. She placed her hands on his chest and pushed, demanding that he leave. This appears a reasonable response to me – he did not fall down, and continued to poke his head in the windows goading us. We called the police, and an officer advised the “undesirable” to stay away from my wife and our shop, and advised us to report further incidents. We are unsure if we can find a witness (we were across the street from a restaurant). Please – any advice for the magistrate hearing? The complaint provides no details of his complaint.

ATTORNEY ANSWER:

You should hire a lawyer to represent your wife at the Magistrate’s hearing. The fact that this incident happened over nine months ago and the police were called at the time and spoke to the complainant tells me that this application for complaint was likely filed by the “undesirable”. In my experience the police would never wait that long to file an application for complaint.

What your wife received in the mail was probably just the summons to the hearing, which reveals very little information. The person filing the complaint, either police officer or “undesirable”, would have had to fill out a statement of facts about the incident at the time it was filed. Your wife can obtain a copy of this statement of facts from the Clerk’s office at the courthouse. Due process entitles her to know the facts that substantiate the allegation against her.
Clerk Magistrates are granted discretion at these hearings to “weed out” cases that do not merit issuing a complaint. To me this seems like just such a case. However, that being said the burden of proof is very low and anything your wife says at the hearing can be used against her later at a trial. Hiring a lawyer is a very good idea. [Read more...]

Additional Information:
The  police did not have me  conduct a field sobriety test or anything.  I was driving with my lights off (my dash lights in my car had been out for a while, and my front headlights come on automatically when the car is turned on) when I was pulled over by the police.  I had not been smoking for over 12 hours, and the cop arrested me with no sobriety test, or anything, but he did find a lot of pot.  [Read more...]

Additional Information:

My 22-year old daughter was involved in a minor accident and doesn’t know if she caused damage to the parked car she hit.  She left the parking area without leaving her contact information and now she’s wondering what she should do.  Can you please explain the law regarding this situation and her legal responsibilities? Thanks.

ATTORNEY ANSWER:

In order for the Commonwealth to prove that your daughter left the scene of an accident the Commonwealth must prove the following 5 things beyond a reasonable doubt.

First, that the defendant operated a motor vehicle;

Second, that she operated it on a way or in a place where the public has a right of access, or in a place where members of the public have access as invitees or licensees;
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Additional Information:

Does it have to do with whether you can go to jail or not if you get convicted or not or is it some other factor? Thanks.

ATTORNEY ANSWER:

The definition of a felony in MA is any crime that carries the potential penalty of at least 1 year in state prison.  Every other offense is a misdemeanor.  A misdemeanor can only carry the potential for a house of correction sentence.  The maximum sentence under a misdemeanor is 2.5 years in the house of correction.  The maximum penalty under a felony is life imprisonment.  So to determine whether something is a felony or a misdemeanor you need to look at the potential penalty for the crime under the statute. [Read more...]

ATTORNEY ANSWER:

Alimony is generally based in MA on two principals: need and ability to pay.  If there is a need by one spouse for alimony or spousal support from the other spouse and their is an ability to pay by the payor spouse, then you may be eligible for alimony in MA.  The Court will consider all of the statutory factors set out in M.G.L. c. 208 s. 34. There are no guidelines for alimony (such as there are for child support) in MA and the case law is not very helpful, however a committee has been formed to make findings and report on those findings to the judiciary and the legislature relative to establishing a model for determining how alimony should function in MA.  [Read more...]

Additional Information:

I was just married and now realize it was a mistake. What are the requirements for getting an annulment in Massachusetts?

ATTORNEY ANSWER:

An annulment is distinguished from a divorce.  An annulment is not a dissolution of the marriage but is a judicial declaration that no marriage exists between the parties.  Because of the imporance to society in insuring stability and regularity in what appears to be a valid marriage the American courts have recognized a presumption that marriages of record are valid until shown otherwise.  [Read more...]

Additional Information:

My 19 year old daughter was caught shoplifting a few weeks ago at a local drug store ($15 make up kit). I guess I was hoping the whole thing would go away but we got a summons to appear for something like a magistrate hearing. Any thoughts on how to handle this? She has never been in any trouble before but she just made a stupid mistake.

ATTORNEY ANSWER:

It really depends on the Court and the particular magistrate to know what may happen at the hearing.  These are closed hearings not open to the public.  A representative of the local police department will read a summary of the facts to the clerk magistrate.  You have an opportunity to bring an attorney or represent yourself.  Although your daughter is an adult you would likely be allowed to participate in the hearing with your daughter.  Your daughter could present any evidence she may have in her own behalf or say nothing.  She should know that any thing she says can be used against her in a later proceeding, and the proceedings are recorded.

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Additional Information:

I was involved in a fight with a former friend. Now we’re both charged with assault but neither one of us wants to press charges. So can we just refuse to press charges so the case goes away? We don’t get along any more (duh) but neither one of us wants to press charges.  Can I refuse to press charges?

ATTORNEY ANSWER:

The answer is: it depends.  It depends on which stage of the proceedings the matters are in.  If the matters are scheduled for clerk magistrate hearings that have been filed by the police, then typically you and your friend could attend the hearings and indicate to the police prosecutor and the clerk magistrate that you do not wish to proceed with the matters and the Court would honor that request.

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Additional Information:

In 2006 I was 18. I got pulled over and had a warrant I was not aware of. This took place in 2010. The charges are Assault and Battery, A&B with shod foot and threaten to commit a crime. I remember the altercation in which several people were involved and no one was hurt. I was the only one charged. I am concerned because I am a straight A college student and an over all harmless person. This is my first offense. Will I go to jail for this? I’ve been friends with the victim for 15 years and I never knew he pressed charges on me. What do I do?

ATTORNEY ANSWER:

You need to consult with an attorney experienced in handling these types of matters and preferably one who practices in Worcester County. The likelihood of you being incarcerated given the scenario you have described is low, but nevertheless the possibility does exist and you should treat the matter very seriously.  The government may have a difficult time proceeding with the case, given its age and your closeness with the alleged victim, but you will not know that until you have an experienced lawyer representing you. [Read more...]

Additional Information:

We live in MA and are not divorced yet. I  know my wife has a new boyfriend. I am afraid that once I am out of the house that he will move in with her and my 4 boys all under the age of 13. I am and will continue to pay for the mortgage. Is there a waiting period that needs to be before he can move in?

ATTORNEY ANSWER:

I always oppose a spouse moving in their new boyfriend/girlfriend during the pendency of a divorce when there are minor children involved, and in this case there are four. I find it to be totally inappropriate and confusing to the minor children who are already going through a very traumatizing situation with their parents divorcing. I have never had a judge not order this when I have requested it in a motion and therefore I believe most if not all judges share this same philosophy. I would absolutely oppose this if I were you, it is not in the best interests of the children.  Once the divorce is complete however, it can be a different story. You would generally need a compelling reason to keep the boyfriend out of the home after the divorce. Without knowing more about the situation I can not advise you appropriately.
Good Luck. [Read more...]

Additional Information:

Both parties went over paperwork to make all corrections petitioner dragging feet about filing respondent wants done now.

ATTORNEY ANSWER:

As long as everything has been signed and filled out appropriately you can file it with the Court. The problem with be if the petitioner has changed their mind about the terms of the agreement then the Court will not accept the divorce agreement at the final hearing that both parties do not agree to.

If it appears that there is no longer an agreement between you and the petitioner you may just want to serve them with a complaint for divorce to get the ball rolling and hopefully reach an agreement later. At least then the Court will have jurisdiction over the case and the clock will start ticking on the divorce. Most divorces are put on a 14 month track assignment. [Read more...]

Additional Information:

Neither party is fighting for any property etc

ATTORNEY ANSWER:

Yes, even in a simple uncontested divorce you are generally required to appear before the Court so the Judge can ensure that you have read the agreement, understand it and signed it voluntarily and also made an accurate and complete disclosure of all of your assets, debts expenses and income on your financial statement. If you have a very good reason, like you are out of state and have no way to get back for the hearing or some other good reason you could file a motion to waive your appearance at the hearing with an affidavit signed under the pains and penalties of perjury detailing why you cannot be at the hearing. Otherwise the hearing should only last a few minutes and be very straight forward. [Read more...]

Additional Information:

My husband has been arrested for assault with a deadly weapon, unregistered gun, and attempted robbery. I want to know what to expect from the DA office when we return to court. They do not have a gun, and the witness that was shot is not cooperating with the police or DA. I am not sure if there are other witnesses that supposedly picked him out of a line of photos due to the fact that he has a prior record. His bail right now is 75000.

ATTORNEY ANSWER:

At the hearing the DA needs to present live witness testimony to the Court, they need to present enough evidence to show that probable cause exists for each of the crimes. If the victim witness does not appear for the hearing it is possible the case could be dismissed. It is also possible the DA may be able to offer evidence through another witness. Without knowing more about the facts of the case it is hard to say.

Typically in my experience in the Leominster District Court and Worcester County in general the DA’s office will avoid a probable cause hearing by directly indicting the Defendant. That way the defense attorney does not get to cross examine any witnesses at the probable cause hearing and the case gets transferred to Superior Court. So chances are there will be no probable cause hearing. [Read more...]

Additional Information:

I was issued a Massachusetts Uniform Citation – “Criminal Application” for OUI-Drugs and not arrested on scene. The criminal citation was not signed/certified by the police officer who issued it. In the space titled “OFFICER CERTIFIES” he checked off “MAILED TO VIOL.” and wrote in only his badge number but not his signature. What are the chances this will be dismissed at the Clerk’s Hearing based on this technicality?

ATTORNEY ANSWER:

Very unusual for you not to be arrested on scene for an alleged OUI drugs. What evidence could they possibly have that you were under the influence? Unlikely the matter would be dismissed on that technicality. Depending on the circumstances you could file a motion to dismiss based on the fact that the citation was not issued to you immediately, but rather several days later by mail. I would need to know more about the facts. OUI drugs cases are very hard for the government to prove, particularly when you were not arrested. You should fight that case tooth and nail. [Read more...]

Additional Information:

I have a friend who is in jail and gets out on the 15th but he has probate court the 13? he does not want to lose his children and is a good father.

ATTORNEY ANSWER:

He should immediately file a written request with the probate and family court to Haeb him into the hearing. He should reference the case caption like Jane Doe v. John Doe, the Docket Number of his case and send it to the Registry of Probate for the county where the probate case is being heard. He should inform them that he is in custody and the particular jail he is in and request a Haeb for him to be transported into the hearing. The probate court can then issue a Haeb to the jail he is in who can transport him to the hearing. Just to make sure on the procedure for that particular county you could always go to or call the registry of probate and make sure that is the correct procedure.  Good Luck. [Read more...]

Additional Information:

We’ve moved too quickly, this isn’t right for us and our situation. What should I do? Are there free consultations available? I just want this done smoothly and quickly, is that even possible?

ATTORNEY ANSWER:

If the two of you agree on all of the issues, then it should not be difficult to untangle a 4 month marriage and you can likely accomplish this quickly and smoothly.

[Read more...]

Additional Information:

What if i change my state can i still continue with my case at mass?

ATTORNEY ANSWER:

The Court sends you a notice of pre-trial conference, which states that you need to have an accurate financial statement and pre-trial memorandum filed at the pre-trial. The notice will tell you what to include in the memorandum. The memorandum will tell the court what the contested and uncontested issues are, i.e, custody, property division, health insurance etc. So the judge will read the memos and then hear from both parties about their respective positions on the issues and depending on the judge may provide you with some feedback on how he or she would rule on these issues and try and help you resolve the case. If you are unable to resolve the case, the court will likely schedule a trial date. In rare cases, if there are very few issues and they are relatively simple, the court could order the case to immediate trial on the day of the pre-trial.

If you have a pre-trial conference scheduled, then the Court in MA has jurisdiction over your case, this will be true whether you move out of state now or not, because you have already subjected yourself to the jurisdiction of the court.

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