FAQs
Bankruptcy and Debt Reorganization
- What is bankruptcy?
- What type of chapter of bankruptcy should I file?
- Who can file bankruptcy?
- What do I need to begin the bankruptcy process?
- Do you have to have a certain amount of debt to file?
- Does my divorce decree protect me from creditors if my ex files for bankruptcy?
- Can all types of debt be discharged?
- Will I lose my retirement accounts or payments from social security?
- When do I have to stop using my credit cards if I'm planning on filing for bankruptcy?
Family Law
- How does divorce work in Massachusetts?
- Does a spouse have to prove fault to obtain a divorce?
- How is property divided when you divorce?
- How is child custody determined?
- How is child support determined?
- How is spousal support determined?
Landlord and Tenant Law
- Can I break my lease?
- If my apartment has defects, can I legally withhold rent to make my landlord correct the problems?
- Can I take other actions to force my landlord to correct code violations?
- Can the landlord evict me without going to court?
- If I am moved out because of a court's order, do my belongings go out on the street?
- Can the landlord enter my apartment?
- Can my landlord increase my rent?
- What can my security deposit be used for?
- When must the landlord return my security deposit?
Bankruptcy and Debt Reorganization
- What is bankruptcy?
A bankruptcy is a legal declaration that an individual or a business is unable to pay its creditors or debts. Bankruptcy allows individuals or businesses to either restructure their debt and pay a portion or percentage of it back within a payment plan (Chapter 13), or have most of their debts wiped out (Chapter 7) completely.
- What type of chapter of bankruptcy should I file?
Consumers typically file under Chapter 13, in which repayment is made to creditors, or under Chapter 7, in which the debts are discharged. Each chapter of bankruptcy spells out:
- What bills can be eliminated
- How long payments can be stretched out
- What possessions you can keep
The type to file depends on your particular circumstances and whether or not you have the assets available to repay all or part of your debts. Bankruptcy laws can be tricky, so these decisions should be made with the input of an experienced bankruptcy attorney. Many factors go into deciding what Chapter a person should file. Call 978-632-1633 for a Free Consultation. During this consultation Attorney Paul A. LaRoche will personally analyze your financial situation and advise you on how to proceed.
- Who can file bankruptcy?
With few exceptions, any person or business owing money to a creditor can file a bankruptcy petition.
- What do I need to begin the bankruptcy process?
You need to make a list of past and present debts you have. The petition in a bankruptcy filing includes schedules of assets and liabilities as well as a statement of financial affairs. These documents are filed with the bankruptcy court, along with payment of the filing fee.
- Do you have to have a certain amount of debt to file?
No. However, some situations may not warrant filing for bankruptcy. If your financial situation is temporary, you may consider making arrangements with individual creditors for a change in payment amounts or a reduction in the total amount due.
- Does my divorce decree protect me from creditors if my ex files for bankruptcy?
No. If you co-signed with your ex-spouse on a debt, the creditor can require the entire payment of that debt from you even though the divorce decree assigns the debt to your ex-spouse. Your divorce decree may address any recourse you may have against your ex-spouse should he or she default on the loan obligations set out.
- Can all types of debt be discharged?
No. The debts that cannot be discharged vary slightly between the different chapters of bankruptcy. Generally, the following cannot be discharged:
- Debts for taxes owed to local, state, or federal agencies
- Debts for money, property, or services which were obtained fraudulently
- An extension, renewal, or refinancing of credit which was obtained fraudulently
- Debts which are owed to a spouse, former spouse, or child of the debtor, for alimony, maintenance, or support of such spouse or child, in connection with a separation agreement, divorce decree, or other court order
- Debts owed for willful and malicious injury by the debtor to another person or property owned by another
- Debts for government-sponsored educational loans, unless it can be shown that repayment will cause an undue hardship
- Debts for death or personal injury caused by the debtor's driving while under the influence of alcohol, drugs, or other substances
- Debts incurred after a bankruptcy was filed
- Will I lose my retirement accounts or payments from social security?
No. Retirement accounts that are ERISA-qualified are not considered property of an estate and cannot be taken. These include an IRA or 401(k).
Social Security benefits are generally protected from assignment or garnishment for debts in bankruptcy. The Social Security Administration's responsibility for protecting benefits against legal process and assignment usually ends when the beneficiary is paid. Once paid, the benefits continue to be protected only as long as they can be identified as Social Security benefits. For example, suppose you have a bank account for which the only deposits are direct deposits of Social Security benefits. The Social Security benefits in this case are clearly identifiable and are generally protected.
- When do I have to stop using my credit cards if I'm planning on filing for bankruptcy?
As soon as you anticipate filing bankruptcy, you must stop using your credit cards. Bankruptcy law allows the review of questionable purchases for potential fraud. If a purchase is made 90 days before filing, or cash advances taken within 70 days of filing, the debt may be excluded from the bankruptcy.
Family Law
- How does divorce work in Massachusetts?
A divorce is a lawsuit brought by one spouse against the other. The complaint must be served by a sheriff or constable either on the other spouse or through the spouse's attorney. There are two types of divorce: contested and uncontested.
In an uncontested divorce, the parties reach an agreement on the division of their property, the payment of spousal and child support, custody of the children, and other matters. The attorneys will negotiate and draft a separation agreement and submit this to the court. A hearing will be scheduled. If the judge finds the agreement fair and equitable a divorce will be granted.
A contested divorce is usually an expensive and lengthy legal action. The matter may be litigated at trial and a judge decides the contested issues.
- Does a spouse have to prove fault to obtain a divorce?
No-fault divorce is available in Massachusetts. Either party can bring an action for divorce. If the parties cannot settle their case, fault can be taken into consideration by the judge when he or she makes a determination on the amount of support and property distribution.
- How is property divided when you divorce?
There is no formula and judges are given discretion in dividing the marital property. Massachusetts has equitable distribution, which means that the marital property is divided in a manner the court thinks is fair. There are a number of factors courts consider when dividing the property:
- Length of the marriage
- Causes of the divorce
- Age, health, occupation, amount and source of income of the parties
- Vocational skills of the parties
- Employability of the parties
- Liabilities and needs of the parties
- Opportunity of each of the parties for future acquisition of property and income
- Contribution of each of the parties towards the acquisition the property
- Needs of the children
The court must also consider the value of the homemaker's services in dividing the property.
- How is child custody determined?
The child custody laws in Massachusetts focus on the needs of the child and who can best meet those needs. The court seeks to provide the best and least disruptive living arrangements for the children of a divorce while considering the importance of the child's continuing relationship with both parents. The factors the court considers include:
- The child's wellbeing
- The child's adjustment to family, school, and community
- The child's relationship with the parents
- Whether there is history of abuse, drug or alcohol use, or abandonment
- Which parent has been the primary caregiver
Income is not a deciding factor because judges can award child support in order to make up for income differences between the custodial and the non-custodial parent.
The law in Massachusetts does not grant preference to one parent over another based on gender.
The court may appoint a Guardian Ad Litem in charge of finding the best outcome for the children. The Guardian Ad Litem will conduct an investigation that includes interviewing the parents and children, and will then issue a recommendation regarding child custody and visitation.
- How is child support determined?
The amount of child support can be agreed on by the parents and entered by the court as an order. Otherwise, it is usually determined with the aid of the Massachusetts Child Support Guidelines. Some of the factors considered are:
- The income of each parent
- The number and age of children
- Child care costs
- Health insurance coverage
- Expenses such as travel for visitation
The court may also determine the amount based on how much a person could be earning rather than on actual income if that the person is not making a reasonable effort to earn more.
- How is spousal support determined?
The same factors considered by the court in determining property division are used in the determination of spousal support, also called alimony. In determining the amount of alimony the court considers the needs of the alimony recipient and the income of the spouse who is asked to pay alimony. In addition the court considers whether the parent with custody of minor children should obtain employment outside the home. There are no formulas for determining the amount of alimony or the length of time during which it is paid. Generally, the longer the marriage, the longer alimony will be paid.
Landlord and Tenant Law
- Can I break my lease?
If you have a lease then you cannot just break the lease. A lease is a contract, and when you sign it, you are bound by its terms. Your lease is a written record of your agreement to remain in the unit and pay rent until the date specified in the contract. If you fail to abide by those terms, you may still be responsible for rent until the end of the term.
However, Massachusetts law requires your landlord to make reasonable efforts to rent the apartment to someone else. This can eliminate or reduce the rent owed for the remaining term of the lease.
- If my apartment has defects, can I legally withhold rent to make my landlord correct the problems?
Massachusetts law allows tenants to withhold rent in certain situations. You must be up to date on rent payments and the apartment must have conditions which violate the Housing Code and are serious enough to harm your health and safety. These conditions cannot be caused by you and must be known by the landlord.
- Can I take other actions to force my landlord to correct code violations?
Massachusetts law gives tenants the right to have their apartments inspected by a health inspector. If the inspector finds violations of the sanitary code or local health ordinances, he or she can issue and order requiring the landlord to make repairs within a specified period of time.
- Can the landlord evict me without going to court?
No. In Massachusetts landlords cannot use self-help and must follow the proper procedure in court.
- If I am moved out because of a court's order, do my belongings go out on the street?
No. Constables will store the property in a licensed storage facility. The facility must keep your belongings for at least six months. Whatever facility which accepts your property will have an automatic lien on it for reasonable storage fees and expenses of moving it to the place of storage.
- Can the landlord enter my apartment?
Massachusetts Law gives your landlord the right to enter your apartment for several reasons, including to inspect, make repairs, or to show the apartment to prospective tenants. The law has been interpreted to require landlords to give reasonable notice (24-48 hours) and to enter only at reasonable times.
- Can my landlord increase my rent?
The lease between the landlord and tenant is a legal contract. It cannot be changed by one side during the term of the lease. You can agree to a rent increase. If you do not agree to the rent increase, then the landlord must terminate the lease.
- What can my security deposit be used for?
Massachusetts law allows the landlord to use the tenant's security deposit for:
- Any unpaid rent not lawfully withheld
- Unpaid increases in real estate taxes the tenant is required to pay under a tax escalator clause in the lease
- Any reasonable amount necessary to repair damage to the apartment caused by the tenant or their pets or guests
- When must the landlord return my security deposit?
The landlord has 30 days from the termination of the tenancy or from the day you vacate the apartment to return the security deposit or any remaining balance.
