My husband and I are getting divorced. We have pretty much figured out how to handle the finances, custody and parenting schedule, and I got the house in Ashland, so now I’m thinking about how to go about creating a new will, and other new documents such as power of attorney.  My husband had taken care of all that and I want to have all these matters squared away.  Do I need to wait for the divorce to be final to start working on these documents?

ATTORNEY ANSWER:

Yes.  Once the divorce is final, it is always wise to revisit your estate plan.  You should consider having a new will, health care proxy, and power of attorney prepared.   

Our Ashland Divorce Lawyers at HKWG provide legal services to individuals and families in Ashland Massachusetts and in the neighboring communities including: Framingham, Sherborn, Holliston, Hopkinton and Southborough.

When my husband and I got married, instead of a having a lavish wedding, my parents gave me money (about $35K) to put towards the down payment on our Natick house that we bought together.  I am now in the early stages of filing for a divorce, will my husband get half of that money?

ATTORNEY ANSWER:

It largely depends on the length of the marriage.  If your marriage was short term (less than 5 years), then typically the money lent by your parents for the down payment on the house would belong to you.  If the marriage was mid term or long term, then it is more discretionary, as these funds have been woven into the fabric of the marriage. 

Our Natick Divorce Lawyers at HKWG provide legal services to individuals and families in Natick Massachusetts and in the neighboring communities including: Wellesley, Needham, Dover, Sherborn, Framingham and Wayland.

I have been at my job here in Marlborough MA for 4 years and am planning to move to Florida in a few months.  It seems like the right thing to do to give enough notice to my boss that I’ll be leaving so they can hire someone else and I can help get the new person trained but I’m afraid they’ll fire me and then I’ll be without a job until I move.  Is it legal for them to fire me after I give notice?

ATTORNEY ANSWER:

If you do not have an employment contract with your employer, the general rule, subject to many exceptions, is that an employer can fire you for any reason or no reason, with or without notice.  If none of the exceptions to the at-will employment rule apply in your case (for example illegal discrimination), then you might be able to get a sense as to whether they will immediately let you go by finding out how other employees have been treated who gave notice in the past.   Many legitimate reasons exist for an employer to terminate an employee immediately once they give their notice so that fear is reasonable.  However, many employers will appreciate the advanced notice and will not immediately terminate you even though they could because they will want your assistance training your replacement.

Our Marlborough Employment Lawyers at HKWG provide legal services to individuals and businesses in Marlborough and in the neighboring communities including: Hudson, Berlin, Northborough, Southborough, Sudbury and Maynard.

I was involved in a minor car accident in Framingham MA while driving the company car.  I’m sure there were dents and scrapes on the bumper before my accident.  Is it legal for my employer to take an unauthorized deduction from my paycheck for cover the damages?

ATTORNEY ANSWER:

This question recently stumped a MA Superior Court judge, who thought that if the employer had a written policy, and the employee could avoid discipline by accepting the wage withholding, that a wage deduction was  legal.  The Supreme Judicial Court disagreed, and said that the employer must pay the wages, that no setoff as that term has been interpreted applied, and therefore a deduction for wages was illegal.  The court did not doubt that the employer was following established procedures, that the accident could very well have been the employees fault, and that an employee may be liable to his or her employer for that employee’s negligence.  The employer may not, however reduce wages as a result.  The employer was ordered to pay the employee back the amount withheld, and was assessed a fine.

Our Framingham Employment Lawyers at HKWG provide legal services to individuals and businesses in Framingham and in the neighboring communities including: Marlborough, Southborough, Ashland, Sherborn, Natick, Cochituate, Wayland and Sudbury.

Most often, workers feel they have no choice but to sign a noncompetition agreement with their employers. They are frequently presented with the document, maybe as part of a broader contract, early in the working relationship, perhaps even the first day on the job. The boss says the non-compete is routine and must be signed, so the employee does so, often without thoroughly reading or fully understanding it. What, after all, is a new hire to do? Among the last things any employee wants is to test the limits of the boss’s patience on day one. That, after all, can lead quickly to the unemployment line, a place far too many Massachusetts workers are tired of waiting in.

    The problem is, signing a non-compete agreement can also lead to loss of a job. Whether signed under questionable circumstances like these or not, employers tend to use the forms to try and limit or even prevent employees from taking jobs within the same industry. The issue normally arises at or shortly after an employee leaves work, whether voluntarily or otherwise. Employers then pull out what is sometimes an old or forgotten agreement that they claim restricts the worker’s future employment. The employee is sent scrambling for answers, uncertain whether or how he/she can avoid a lawsuit and make a living. Too often, intimidated workers don’t realize that entering a noncompetition agreement and enforcing it are two different things. Rather than seeking legal advice and weighing options effectively, they alter their plans in order to avoid a conflict with what is normally a financially more powerful adversary.

The better approach is to analyze the facts and make an informed decision how to proceed. This is normally done with the help of an attorney, who begins the analysis of a noncompetition agreement by collecting facts about the parties’ employment relationship. Sometimes, it’s discovered that a worker was not classified as an employee at all and was instead called an “independent contractor,” a label commonly used (legally or otherwise) in the real estate business, for example, and the courier industry. The question then necessarily arises whether the independent contractor label is appropriate and, if it is not, whether a noncompetition agreement can be enforced against a worker who was misclassified and thereby denied work benefits. A lawyer might also question whether the contract was properly formed, whether the working relationship changed over time, and whether the employer has valid business reasons for enforcing it. All these factors and more are relevant to the enforcement of non-compete agreements. All must be carefully analyzed by workers who face potential enforcement actions, which can be costly and unpredictable.

Workers who face noncompetition issues are well-served by engaging in this sort of analysis, either with the help of counsel or otherwise. The important point is that they understand the basic concepts of noncompetition enforcement under Massachusetts law. This, in turn, permits employees to make wise decisions based on facts and laws rather than panicked ones prompted by employer threats. While noncompetition agreements are valid in the Commonwealth, the road to effective enforcement is fraught with land mines. Only when an employer satisfies a rather heavy burden of proof can it succeed, and even then a court can modify a noncompetition agreement to permit a former worker to make a living while protecting legitimate business interests. Among the various items that could be relevant in a non-compete case are the following.

Employee or Independent Contractor

It’s been some years now since Massachusetts adopted a tough law against the use of independent contractors. Though the statute essentially bans them for most work-related purposes, certain employers continue to use independent contractors to streamline business operations and save money. In some industries, such as real estate, a long history of using contractors remains unaffected by Massachusetts law, aided in part by taxing authorities that may choose to accept the classification as valid regardless what Massachusetts law might say. This does not, however, make the relationship any more legal under the state’s independent contractor statute.

In noncompetition litigation, this question could prove important. Though a true independent contractor might be more easily bound by a non-compete agreement than an employee, the law could lean the other way for employees who are wrongly classified by a company. That practice is frowned upon in Massachusetts, which has a task force aimed at uncovering it. If an employer knowingly violates the independent contractor statute – that is, if it creates a contract that improperly treats an employee as a contractor, thereby avoiding both taxes otherwise owed to the government and benefits otherwise due to the worker – it might undermine its ability to enforce the noncompetition portion of that same contract. This question should certainly be explored, at least, by contractors who are threatened with litigation by their former employers.

Contract Formation

Noncompetition agreements cannot be enforced unless they are part of a valid contract. Generally speaking, this means that the parties must agree to terms based on relatively fair bargaining powers between them. Each side must get something in return for contractual obligations. For employers, that requirement is typically met by the agreement’s restrictions on future work, solicitation of customers or workers, protection of confidentiality, or the like. For employees, the benefit to a noncompetition bargain can be harder to identify. It is not satisfied, for example, by continuation of an existing working relationship, and this can mean that an agreement given to an employee for the first time after work commences isn’t valid. An agreement signed before and as a condition of starting a job is more likely to be enforced than one signed afterward.

Contract Continuity

Even a properly signed noncompetition agreement can be overridden by circumstances that follow. Under the at-will employment rule that prevails in Massachusetts, employer and employee alike are free to end the working relationship at any time. By the same token, they can rewrite it. Each time they do – by changing a worker’s job title, for example, or altering pay scales – a new non-compete agreement should be signed. The longer a worker has been employed, the more likely it is that some circumstance or other intervenes to undermine even a validly signed non-compete form. In looking at this question, workers should consider whether any changes have occurred in the relationship with their companies since the original non-compete was created. Any employment-related agreement could be relevant and might constitute a defense to enforcement.

 Legitimate Business Interests

Even where a noncompetition agreement is valid, employers seeking to enforce its terms must prove that doing so is essential to protection of a legitimate business interest. This commonly takes the form of a company’s good will (its reputation in the community or with customers) or trade secrets. An employer must show that, whatever its former worker is either doing or proposing to do for a competitive business, the conduct will somehow hurt it in a substantive way. It’s not enough, then, to simply prove that an agreement exists. The former employer must also demonstrate that the worker possesses some form of proprietary information that has already or inevitably will be used to cause it damage. It must also prove that the scope of its restrictions is reasonably targeted to prevent such damage and doesn’t unnecessarily block a worker from making a living.

These areas of inquiry represent some but not all of the factors employees or independent contractors should consider in noncompetition situations. It’s always preferable, of course, to do so before a dispute arises, if at all possible. Where this can be done, a worker will be well-served by reviewing his/her own agreement first, showing it to a prospective new employer, and consulting with an employment attorney as the situation may require. Where problems already exist, a former worker should act quickly to be sure he/she understands what may lie ahead. In most cases, it is the employer and not the employee who faces the more difficult burden in an enforcement action. Many times, litigation can be avoided by arming oneself with strong knowledge and using it to head off problems before they reach the court house.

Jack K. Merrill, Esq.

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

ATTORNEY ANSWER:

An action to anul a marriage can be brought in the probate court if the validity of a marriage is doubted.  The statutory grounds include incest and bigamy, and do not include mistake, although you could obtain an annulment for fraud, impotency, duress or for other reasons.  If the marriage is valid, then the remedy is to obtain a divorce.

With law offices in Framingham, MA and Milford, MA our Divorce Attorneys provide legal services throughout the Boston metrowest and Worcester county region including Ashland, Dedham, Framingham, Franklin, Hopkinton, Maynard, Marlborough, Milford, Natick, Needham, Newton, Shrewsbury, Sudbury, Waltham, and Worcester, Massachusetts.

My husband and I live in the Boston Metrowest area and are currently 3 months behind on our mortgage payments and have been separated for 6 months. My husband is refusing to cash in $70K in stock to help pay the monthly mortgage. Can a judge order him to sell his stock?

ATTORNEY ANSWER:

The Judge will usually determine what assets are in the marital estate.  If the stock is part of the marital estate the judge could order him to sell the stock.

With law offices in Framingham, MA and Milford, MA our Divorce Attorneys provide legal services throughout the Boston metrowest and Worcester county region including Ashland, Dedham, Framingham, Franklin, Hopkinton, Maynard, Marlborough, Milford, Natick, Needham, Newton, Shrewsbury, Sudbury, Waltham, and Worcester, Massachusetts.

I left my husband a couple of years ago and moved out of state (I’m in IL now but we were married in MA). When I moved, we just wanted time apart. It wasn’t a legal separation, just a verbal. We haven’t talked in a long time and I’m not on his health care or anything or vice versa, but I wondered if leaving the marriage constituted abandonment or something like that.

ATTORNEY ANSWER:

MA is a “no fault” divorce state, so the grounds for divorce are “irretrievable breakdown”.  If your husband still resides in MA and you last lived together in MA, MA would have jurisdiction.  If you both live out of state and are no longer MA residents, then MA does not have jurisdiction. In MA, you can remain separated indefinitely.

With law offices in Framingham, MA and Milford, MA our Divorce Attorneys provide legal services throughout the Boston metro west and Worcester county region including Ashland, Dedham, Framingham, Franklin, Hopkinton, Maynard, Marlborough, Milford, Natick, Needham, Newton, Shrewsbury, Sudbury, Waltham, and Worcester, Massachusetts.

Do we have to go together or can we go separately?

ATTORNEY ANSWER:

You both do not need to be present to file the documents, but you both need to be present for the hearing.

With law offices in Framingham, MA and Milford, MA our Divorce Attorneys provide legal services throughout the Boston metro west and Worcester county region including Ashland, Dedham, Framingham, Franklin, Hopkinton, Maynard, Marlborough, Milford, Natick, Needham, Newton, Shrewsbury, Sudbury, Waltham, and Worcester, Massachusetts.

ATTORNEY ANSWER:

Yes, under certain circumstances set forth in the law.  The property manager may enter in accordance with a court order, if the premises appear to be abandoned by the lessee, or to inspect within the last 30 days of the tenancy or after either party has given notice to the other of the termination of the tenancy for purposes of determining any damages to the unit.  The lease should provide for access with notice to inspect, to make repairs and to show the premises to a prospective tenant.

With law offices in Framingham, MA and Milford, MA our real estate lawyers provide legal services to individuals, families and businesses throughout the Boston metro west and Worcester county region including Ashland, Dedham, Framingham, Franklin, Hopkinton, Maynard, Marlborough, Milford, Natick, Needham, Newton, Shrewsbury, Sudbury, Waltham, and Worcester, Massachusetts.